8

EIGHTH REPORT

COMBATTING TERRORISM – PROTECTING BY RIGHTEOUSNESS

SECOND ADMINISTRATIVE REFORMS COMMISSION

COMBATTING TERRORISM
PROTECTING BY RIGHTEOUSNESS

Second Administrative Reforms Commission

Government of India

2nd Floor, Vigyan Bhawan Annexe, Maulana Azad Road, New Delhi 110 011
e-mail : arcommission@nic.in website : http://arc.gov.in JUNE 2008
 GOVERNMENT OF INDIA

SECOND ADMINISTRATIVE REFORMS COMMISSION

EIGHTH REPORT

COMBATTING TERRORISM
PROTECTING BY RIGHTEOUSNESS

JUNE 2008
 PREFACE

In his First Pillar Edict, Emperor Ashoka, stated: “This world and the other are hard to gain without
great love of Righteousness, great self-examination, great obedience, great circumspection, great effort … For this
is my rule, to govern by Righteousness, to administer by Righteousness, to please my subjects by Righteousness,
and to protect them by Righteousness.”

In his Tractatus Politicus, (The Political Treatise) Spinoza said:

“The last end of the state is not to dominate men, nor to restrain them by fear; rather it is so to free each
man from fear that he may live and act with full security and without injury to himself or his neighbour.
The end of the state, I repeat, is not to make rational beings into brute beasts and machines. It is to enable
their bodies and their minds to function safely. It is to lead men to live by, and to exercise, a free reason;
that they may not waste their strength in hatred, anger and guile, nor act unfairly toward one another.
Thus the end of the state is really liberty”.

This is the Eighth Report of the Second Administrative Reforms Commission (ARC) which deals
with the menace of terrorism and how India’s legal and administrative framework can be refurbished
to tackle it.

The nature of terrorism today is shifting from “traditional international terrorism of the late 20th
century into a new form of transnational non-state warfare.” An arc of extremism now extends
across the Middle East and touches countries far outside that region including India. To defeat it,
an alliance of moderation has to be carved out, one that points to visions for the future in which
Hindu, Muslim, Jew and Christian; Arab and Western; wealthy and developing nations can make
progress in peace and harmony. We will not be able to win the battle against global extremism
unless we can win it at the level of values as much as force and unless we can show that we are fair,
even-handed and just in our application of those values to the world.

This is a completely unconventional type of war. Several attacks in India, 9/11 in the US, 7/7 in the
UK, 11/3 in Madrid, the countless terrorist attacks in countries as disparate as Indonesia or Algeria,
what is now happening in Afghanistan and in Indonesia, the continuing conflict in Lebanon and
Palestine, these are all symptoms of this disease. The underlying causes have to be confronted at
the level of ideologies and values. What are the values that will govern the future of the world? Are
they those of tolerance, freedom, respect for difference and diversity or those of reaction, division
and hatred? This unconventional war can not be won in a conventional way. It can only be won by
showing that our values are stronger, better and more just, more fair and more humane than the
alternative.

Another disturbing trend is that the so-called war against terror is seen as a war against Islam.
This is unjustified and terrible for the Muslims as they now face religious discrimination along with
being socially underprivileged.
i
 PREFACE

In his First Pillar Edict, Emperor Ashoka, stated: “This world and the other are hard to gain without
great love of Righteousness, great self-examination, great obedience, great circumspection, great effort … For this
is my rule, to govern by Righteousness, to administer by Righteousness, to please my subjects by Righteousness,
and to protect them by Righteousness.”

In his Tractatus Politicus, (The Political Treatise) Spinoza said:

“The last end of the state is not to dominate men, nor to restrain them by fear; rather it is so to free each
man from fear that he may live and act with full security and without injury to himself or his neighbour.
The end of the state, I repeat, is not to make rational beings into brute beasts and machines. It is to enable
their bodies and their minds to function safely. It is to lead men to live by, and to exercise, a free reason;
that they may not waste their strength in hatred, anger and guile, nor act unfairly toward one another.
Thus the end of the state is really liberty”.

This is the Eighth Report of the Second Administrative Reforms Commission (ARC) which deals
with the menace of terrorism and how India’s legal and administrative framework can be refurbished
to tackle it.

The nature of terrorism today is shifting from “traditional international terrorism of the late 20th
century into a new form of transnational non-state warfare.” An arc of extremism now extends
across the Middle East and touches countries far outside that region including India. To defeat it,
an alliance of moderation has to be carved out, one that points to visions for the future in which
Hindu, Muslim, Jew and Christian; Arab and Western; wealthy and developing nations can make
progress in peace and harmony. We will not be able to win the battle against global extremism
unless we can win it at the level of values as much as force and unless we can show that we are fair,
even-handed and just in our application of those values to the world.

This is a completely unconventional type of war. Several attacks in India, 9/11 in the US, 7/7 in the
UK, 11/3 in Madrid, the countless terrorist attacks in countries as disparate as Indonesia or Algeria,
what is now happening in Afghanistan and in Indonesia, the continuing conflict in Lebanon and
Palestine, these are all symptoms of this disease. The underlying causes have to be confronted at
the level of ideologies and values. What are the values that will govern the future of the world? Are
they those of tolerance, freedom, respect for difference and diversity or those of reaction, division
and hatred? This unconventional war can not be won in a conventional way. It can only be won by
showing that our values are stronger, better and more just, more fair and more humane than the
alternative.

Another disturbing trend is that the so-called war against terror is seen as a war against Islam.
This is unjustified and terrible for the Muslims as they now face religious discrimination along with
being socially underprivileged.
i
 The Koran is very clear: ‘let there be no compulsion in religion’. Nothing could be more
explicit than this. So, the whole mythology about the spread of Islam through the sword is
baseless. There is no Koranic sanctity for spreading faith with the sword.
Dr. Manmohan Singh, our Prime Minister said:
“Democracies provide legitimate means for expressing dissent. They provide the right to engage in
political activity, and must continue to do so. However, for this very reason, they cannot afford to be
soft on terror. Terrorism exploits the freedom our open societies provide to destroy our freedoms”.
The spectre of international terrorism is one such phenomenon evolving out of the churning
that has accompanied globalization process. We must fight terrorism wherever it exists, because
terrorism anywhere threatens democracy everywhere.
Whatever the outward manifestation at any one time, anywhere in the world; - this is a
global fight about values, about modernization, both within religions and outside. It is
about whether our value system can be shown to be sufficiently robust, fair, principled
and appealing so that it beats those of the extremists. Extremism’s whole strategy is
based on perceived sense of grievance that can be invlated to motivate people to fight
against each other. Our response has to be a set of values strong enough to unite rather
than divide people.
Sheikh Muslihu-ud-Din, better known as Saadi, thirteenth century poet of Shiraz said,
“A spring at its source can be turned with a twig,
But when grown into a river, not even an
Elephant can cross it”
The human psyche will have to be evolved continuously to ensure that value systems based
on humanity and tolerance prevail over extremism.
The story of the Parsees’ assimilation in India shows that people of different identities, languages,
cultures and religions can assimilate into an inclusive society and culture. The Parsees on
migrating to India from Iran wanted refuge from the local ruler to live in India. The ruler
was reluctant and wanted to convey to them that he had no place for them. He gave the
Parsees a glass of milk filled to the brim. The Parsees understood the meaning, that there was
no place for them in his Kingdom as symbolized by the glass that was full. But the leader of
the Parsees took some sugar and gradually dissolved it into the milk, without causing it to
overflow, a lesson for our intolerant times.
ii
This is why everything we do to prevent and punish acts of terror must flow from the basic
premise that these not only take away innocent lives, but also divide our society, create
mistrust among people and leave scars that can take decades to heal. In that respect, terrorism
is worse than an act of war against the nation, because terror acts are executed by stealth
making no distinctions between civilians and military between men, women and children,
old and young, rich and poor.
In our anti-terror strategy, if we take the human being as the focus of our collective work, we
will be able to do the right thing. But if we begin from abstract ideologies and impersonal
categories that divide society along various boundaries based on religion, language region
etc. we may end up fighting each other and doing each other harm.
The Brahmanda Purana evaluates Sanatana Dharma:
“The roots of Sanatana Dharma are stated to be in being free from malice and greediness;
observance of austerity, compassion for all creatures, self-control, chastity, truth, tenderness, forgiveness,
and fortitude”.
The Gandhian perspective is really more about pure ethics and spirituality than about religion
in a narrow sense of the term. It transcended religion because of its undogmatic universalism
and its ultimate liberating potential even in the mundane world. But he did not decry
religion, because he was convinced with its powerful potential to inspire and sustain moral
conduct.
Non-violence (ahimsa) of Hinduism in Gandhian perspective was not just a negative concept
of avoiding violence; in fact, it required its practitioner to be socially engaged, proactively
kind and caring. An important aspect of the Gandhian perspective thus is its emphasis.
Gandhiji derived inspiration for selfless service as much from Christianity and Islam, as from
Hinduism and Jainism. He found in this the very core of religion and true spirituality. Indian
religions, including Hinduism, have a long tradition of, and scriptural backing to, selfless
service to others, including even animals, which Gandhi rediscovered.
In these days of competitive identity politics, we need to remember the address of Jawaharlal
Nehru to the AICC Session in 1961 when he said ‘that communalism of the majority is far
more dangerous than, the communalism of the minority.’ Not condoning the latter he stated,
‘the communalism of a majority community is apt to be taken for nationalism’.
In particular when politics intrudes into and takes over religion, violence seems to follow.
Innocent people are slaughtered in the name of God. But if we turn things the other way
iii
 The Koran is very clear: ‘let there be no compulsion in religion’. Nothing could be more
explicit than this. So, the whole mythology about the spread of Islam through the sword is
baseless. There is no Koranic sanctity for spreading faith with the sword.
Dr. Manmohan Singh, our Prime Minister said:
“Democracies provide legitimate means for expressing dissent. They provide the right to engage in
political activity, and must continue to do so. However, for this very reason, they cannot afford to be
soft on terror. Terrorism exploits the freedom our open societies provide to destroy our freedoms”.
The spectre of international terrorism is one such phenomenon evolving out of the churning
that has accompanied globalization process. We must fight terrorism wherever it exists, because
terrorism anywhere threatens democracy everywhere.
Whatever the outward manifestation at any one time, anywhere in the world; - this is a
global fight about values, about modernization, both within religions and outside. It is
about whether our value system can be shown to be sufficiently robust, fair, principled
and appealing so that it beats those of the extremists. Extremism’s whole strategy is
based on perceived sense of grievance that can be invlated to motivate people to fight
against each other. Our response has to be a set of values strong enough to unite rather
than divide people.
Sheikh Muslihu-ud-Din, better known as Saadi, thirteenth century poet of Shiraz said,
“A spring at its source can be turned with a twig,
But when grown into a river, not even an
Elephant can cross it”
The human psyche will have to be evolved continuously to ensure that value systems based
on humanity and tolerance prevail over extremism.
The story of the Parsees’ assimilation in India shows that people of different identities, languages,
cultures and religions can assimilate into an inclusive society and culture. The Parsees on
migrating to India from Iran wanted refuge from the local ruler to live in India. The ruler
was reluctant and wanted to convey to them that he had no place for them. He gave the
Parsees a glass of milk filled to the brim. The Parsees understood the meaning, that there was
no place for them in his Kingdom as symbolized by the glass that was full. But the leader of
the Parsees took some sugar and gradually dissolved it into the milk, without causing it to
overflow, a lesson for our intolerant times.
ii
This is why everything we do to prevent and punish acts of terror must flow from the basic
premise that these not only take away innocent lives, but also divide our society, create
mistrust among people and leave scars that can take decades to heal. In that respect, terrorism
is worse than an act of war against the nation, because terror acts are executed by stealth
making no distinctions between civilians and military between men, women and children,
old and young, rich and poor.
In our anti-terror strategy, if we take the human being as the focus of our collective work, we
will be able to do the right thing. But if we begin from abstract ideologies and impersonal
categories that divide society along various boundaries based on religion, language region
etc. we may end up fighting each other and doing each other harm.
The Brahmanda Purana evaluates Sanatana Dharma:
“The roots of Sanatana Dharma are stated to be in being free from malice and greediness;
observance of austerity, compassion for all creatures, self-control, chastity, truth, tenderness, forgiveness,
and fortitude”.
The Gandhian perspective is really more about pure ethics and spirituality than about religion
in a narrow sense of the term. It transcended religion because of its undogmatic universalism
and its ultimate liberating potential even in the mundane world. But he did not decry
religion, because he was convinced with its powerful potential to inspire and sustain moral
conduct.
Non-violence (ahimsa) of Hinduism in Gandhian perspective was not just a negative concept
of avoiding violence; in fact, it required its practitioner to be socially engaged, proactively
kind and caring. An important aspect of the Gandhian perspective thus is its emphasis.
Gandhiji derived inspiration for selfless service as much from Christianity and Islam, as from
Hinduism and Jainism. He found in this the very core of religion and true spirituality. Indian
religions, including Hinduism, have a long tradition of, and scriptural backing to, selfless
service to others, including even animals, which Gandhi rediscovered.
In these days of competitive identity politics, we need to remember the address of Jawaharlal
Nehru to the AICC Session in 1961 when he said ‘that communalism of the majority is far
more dangerous than, the communalism of the minority.’ Not condoning the latter he stated,
‘the communalism of a majority community is apt to be taken for nationalism’.
In particular when politics intrudes into and takes over religion, violence seems to follow.
Innocent people are slaughtered in the name of God. But if we turn things the other way
iii
 around, and start with the human being, we will be able to do what is right and good. Government of India
Ministry of Personnel, Public Grievances & Pensions
As this Report shows, Government reacts to events but there is no long term vision Department of Administrative Reforms and Public Grievances
or planning to tackle terrorism. The intelligence network and policing capacity at both
Union and State levels need to be significantly improved to meet the challenges posed Resolution
by terrorism. New Delhi, the 31st August, 2005

In this Report on Terrorism, the Commission has dealt with the two major aspects of the No. K-11022/9/2004-RC. — The President is pleased to set up a Commission of Inquiry to
country’s counter terrorism framework viz., the legislative mechanism and the administrative be called the Second Administrative Reforms Commission (ARC) to prepare a detailed blueprint
framework; and made detailed recommendations on how these can be upgraded, strengthened, for revamping the public administration system.
reformed and restructured in order to fight terrorism in an effective manner.
2. The Commission will consist of the following :
It is our sincere hope that this Report will help the Government to take steps to fight the
(i) Shri Veerappa Moily - Chairperson
menace of terrorism in an effective manner without losing sight of our values as a secular,
(ii) Shri V. Ramachandran - Member
democratic and peace loving nation.
(iii) Dr. A.P. Mukherjee - Member
(iv) Dr. A.H. Kalro - Member
(v) Dr. Jayaprakash Narayan - Member*
(vi) Smt. Vineeta Rai - Member-Secretary
Date : 07.06.2008 (M Veerappa Moily)
Place : Delhi Chairman 3. The Commission will suggest measures to achieve a proactive, responsive, accountable,
sustainable and efficient administration for the country at all levels of the government.

The Commission will, inter alia, consider the following :

(i) Organisational structure of the Government of India
(ii) Ethics in governance
(iii) Refurbishing of Personnel Administration
(iv) Strengthening of Financial Management Systems
(v) Steps to ensure effective administration at the State level
(vi) Steps to ensure effective District Administration
(vii) Local Self-Government/Panchayati Raj Institutions
(viii) Social Capital, Trust and Participative public service delivery
(ix) Citizen-centric administration
(x) Promoting e-governance
(xi) Issues of Federal Polity
(xii) Crisis Management
(xiii) Public Order

Some of the issues to be examined under each head are given in the Terms of Reference
attached as a Schedule to this Resolution.
iv v
 around, and start with the human being, we will be able to do what is right and good. Government of India
Ministry of Personnel, Public Grievances & Pensions
As this Report shows, Government reacts to events but there is no long term vision Department of Administrative Reforms and Public Grievances
or planning to tackle terrorism. The intelligence network and policing capacity at both
Union and State levels need to be significantly improved to meet the challenges posed Resolution
by terrorism. New Delhi, the 31st August, 2005

In this Report on Terrorism, the Commission has dealt with the two major aspects of the No. K-11022/9/2004-RC. — The President is pleased to set up a Commission of Inquiry to
country’s counter terrorism framework viz., the legislative mechanism and the administrative be called the Second Administrative Reforms Commission (ARC) to prepare a detailed blueprint
framework; and made detailed recommendations on how these can be upgraded, strengthened, for revamping the public administration system.
reformed and restructured in order to fight terrorism in an effective manner.
2. The Commission will consist of the following :
It is our sincere hope that this Report will help the Government to take steps to fight the
(i) Shri Veerappa Moily - Chairperson
menace of terrorism in an effective manner without losing sight of our values as a secular,
(ii) Shri V. Ramachandran - Member
democratic and peace loving nation.
(iii) Dr. A.P. Mukherjee - Member
(iv) Dr. A.H. Kalro - Member
(v) Dr. Jayaprakash Narayan - Member*
(vi) Smt. Vineeta Rai - Member-Secretary
Date : 07.06.2008 (M Veerappa Moily)
Place : Delhi Chairman 3. The Commission will suggest measures to achieve a proactive, responsive, accountable,
sustainable and efficient administration for the country at all levels of the government.

The Commission will, inter alia, consider the following :

(i) Organisational structure of the Government of India
(ii) Ethics in governance
(iii) Refurbishing of Personnel Administration
(iv) Strengthening of Financial Management Systems
(v) Steps to ensure effective administration at the State level
(vi) Steps to ensure effective District Administration
(vii) Local Self-Government/Panchayati Raj Institutions
(viii) Social Capital, Trust and Participative public service delivery
(ix) Citizen-centric administration
(x) Promoting e-governance
(xi) Issues of Federal Polity
(xii) Crisis Management
(xiii) Public Order

Some of the issues to be examined under each head are given in the Terms of Reference
attached as a Schedule to this Resolution.
iv v
 4. The Commission may exclude from its purview the detailed examination of administration Government of India
of Defence, Railways, External Affairs, Security and Intelligence, as also subjects such as Ministry of Personnel, Public Grievances & Pensions
Centre-State relations, judicial reforms etc. which are already being examined by other bodies. Department of Administrative Reforms and Public Grievances
The Commission will, however, be free to take the problems of these sectors into account in ……
recommending re-organisation of the machinery of the Government or of any of its service RESOLUTION
agencies.
New Delhi, the 24th July, 2006
5. The Commission will give due consideration to the need for consultation with the State
Governments. No. K-11022/9/2004-RC (Vol.II) – The President is pleased to extend the term of the second
Administrative Reforms Commission by one year upto 31.8.2007 for submission of its Reports
6. The Commission will devise its own procedures (including for consultations with the State to the Government.
Government as may be considered appropriate by the Commission), and may appoint
committees, consultants/advisers to assist it. The Commission may take into account the Sd/-
existing material and reports available on the subject and consider building upon the same (Rahul Sarin)
rather than attempting to address all the issues ab initio. Additional Secretary to the Government of India

7. The Ministries and Departments of the Government of India will furnish such information
and documents and provide other assistance as may be required by the Commission. The
Government of India trusts that the State Governments and all others concerned will extend Government of India
their fullest cooperation and assistance to the Commission. Ministry of Personnel, Public Grievances & Pensions
Department of Administrative Reforms and Public Grievances
8. The Commission will furnish its report(s) to the Ministry of Personnel, Public Grievances
& Pensions, Government of India, within one year of its constitution. RESOLUTION

New Delhi, the 17 July, 2007

Sd/-
(P.I. Suvrathan)
Additional Secretary to Government of India
*Dr. Jayaprakash Narayan – Member, resigned with effect from 1st September, 2007
(Resolution No. K.11022/26/207-AR, dated 17th August, 2007).
No.K-11022/26/2007-AR – The President is pleased to extend the term of the second
Administrative Reforms Commission (ARC) by seven months upto 31.3.2008 for submission
of its Reports to the Government.
Sd/-
(Shashi Kant Sharma)
Additional Secretary to the Government of India

vi vii
 4. The Commission may exclude from its purview the detailed examination of administration Government of India
of Defence, Railways, External Affairs, Security and Intelligence, as also subjects such as Ministry of Personnel, Public Grievances & Pensions
Centre-State relations, judicial reforms etc. which are already being examined by other bodies. Department of Administrative Reforms and Public Grievances
The Commission will, however, be free to take the problems of these sectors into account in ……
recommending re-organisation of the machinery of the Government or of any of its service RESOLUTION
agencies.
New Delhi, the 24th July, 2006
5. The Commission will give due consideration to the need for consultation with the State
Governments. No. K-11022/9/2004-RC (Vol.II) – The President is pleased to extend the term of the second
Administrative Reforms Commission by one year upto 31.8.2007 for submission of its Reports
6. The Commission will devise its own procedures (including for consultations with the State to the Government.
Government as may be considered appropriate by the Commission), and may appoint
committees, consultants/advisers to assist it. The Commission may take into account the Sd/-
existing material and reports available on the subject and consider building upon the same (Rahul Sarin)
rather than attempting to address all the issues ab initio. Additional Secretary to the Government of India

7. The Ministries and Departments of the Government of India will furnish such information
and documents and provide other assistance as may be required by the Commission. The
Government of India trusts that the State Governments and all others concerned will extend Government of India
their fullest cooperation and assistance to the Commission. Ministry of Personnel, Public Grievances & Pensions
Department of Administrative Reforms and Public Grievances
8. The Commission will furnish its report(s) to the Ministry of Personnel, Public Grievances
& Pensions, Government of India, within one year of its constitution. RESOLUTION

New Delhi, the 17 July, 2007

Sd/-
(P.I. Suvrathan)
Additional Secretary to Government of India
*Dr. Jayaprakash Narayan – Member, resigned with effect from 1st September, 2007
(Resolution No. K.11022/26/207-AR, dated 17th August, 2007).
No.K-11022/26/2007-AR – The President is pleased to extend the term of the second
Administrative Reforms Commission (ARC) by seven months upto 31.3.2008 for submission
of its Reports to the Government.
Sd/-
(Shashi Kant Sharma)
Additional Secretary to the Government of India

vi vii
 Government of India ORGANISATION
Ministry of Personnel, Public Grievances & Pensions
Department of Administrative Reforms and Public Grievances Second Administrative Reforms Commission

RESOLUTION
1. Shri M. Veerappa Moily, Chairman
New Delhi, the 14 February, 2008 2. Shri V. Ramachandran, Member
3. Dr. A.P. Mukherjee, Member
4. Dr. A.H. Kalro, Member
No.K-11022/26/2007-AR – The President is pleased to extend the term of the second 5. Smt. Vineeta Rai, Member Secretary
Administrative Reforms Commission (ARC) by six months upto 30.9.2008 for submission of
its Reports to the Government. Officers of the Commission

Sd/- 1. Shri A.B. Prasad, Joint Secretary

(Dhruv Vijai Singh) 2. Shri P.S. Kharola, Joint Secretary
Additional Secretary to the Government of India 3. Shri R.K. Singh, PS to Chairman
4. Smt. Ruchika Choudhary Govil, Director*
5. Shri Sanjeev Kumar, Director
6. Shri Shahi Sanjay Kumar, Deputy Secretary

viii ix
* This post of Director was temporarily transferred from the Department of Personnel & Training
for the period 04.02.2008 to 08.10.2008.
 Government of India ORGANISATION
Ministry of Personnel, Public Grievances & Pensions
Department of Administrative Reforms and Public Grievances Second Administrative Reforms Commission

RESOLUTION
1. Shri M. Veerappa Moily, Chairman
New Delhi, the 14 February, 2008 2. Shri V. Ramachandran, Member
3. Dr. A.P. Mukherjee, Member
4. Dr. A.H. Kalro, Member
No.K-11022/26/2007-AR – The President is pleased to extend the term of the second 5. Smt. Vineeta Rai, Member Secretary
Administrative Reforms Commission (ARC) by six months upto 30.9.2008 for submission of
its Reports to the Government. Officers of the Commission

Sd/- 1. Shri A.B. Prasad, Joint Secretary

(Dhruv Vijai Singh) 2. Shri P.S. Kharola, Joint Secretary
Additional Secretary to the Government of India 3. Shri R.K. Singh, PS to Chairman
4. Smt. Ruchika Choudhary Govil, Director*
5. Shri Sanjeev Kumar, Director
6. Shri Shahi Sanjay Kumar, Deputy Secretary

viii ix
* This post of Director was temporarily transferred from the Department of Personnel & Training
for the period 04.02.2008 to 08.10.2008.
 CONTENTS LIST OF TABLES
3.1 Security Situation during the Years 2003-07 (North East)
Chapter1 Introduction 1 3.2 Comparative Population Composition in Some Districts of Assam*
Chapter 2 Terrorism - Types, Genesis and Definition 3 3.3 Percentage Growth of Population of Different Religious Communities between 1991
and 2001 in Some Districts of Assam*
Chapter 3 Terrorism in India 18 3.4 State-wise Number of Incidents and Casualties during the Period 2003-07 (Naxalism
Chapter 4 Dealing with Terrorism: Legal Framework 38 related Violence)
Chapter 5 Measures against Financing of Terrorism 80 5.1 Anti-Money Laundering Statistics (USA)

Chapter 6 Institutional and Administrative Measures* 110 LIST OF FIGURES

3.1 Trend of Terrorist Violence in Jammu & Kashmir
Chapter 7 Civil Society, Media and Citizens 111
LIST OF ABBREVIATIONS
Conclusion 135 AICCCR All India Co-ordination Committee of Communist Revolutionaries
Summary of Recommendations 137 CIA Central Intelligence Agency
LIST OF ANNEXURES COFEPOSA The Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act
Annexure-I Recommendations Made at the ‘National Workshop on Public Order’, CPI Communist Party of India
March 11th - 12th 2006, at Sardar Vallabhbhai Patel National Police CPI (ML) Communist Party of India (Marxist-Leninist)
Academy, Hyderabad CPM Communist Party of India (Marxist)
Annexure-II Readings and References Cr.PC Criminal Procedure Code
DCSINT Deputy Chief of Staff for Intelligence
Annexure-IV(1) Comparison of Anti-terrorism Legislations in India
DoS Denial of Service
Annexure-IV(2) Some Salient Features of Anti-terrorist Legislations in Other Countries EPRLF Eelam People’s Revolutionary Liberation Front
List of Reports submitted so far FBI Federal Bureau of Investigation
HEU Highly Enriched Uranium
LIST OF BOXES
HUJI Harkat-ul-Jehad-al-Islami
3.1 Balancing Counter-Terrorism Efforts and Human Rights HUM Harkat-ul-Mujahideen
3.2 Development and Extremism IB Intelligence Bureau
3.3 Global Counter-Terrorism Strategy adopted by the UN General Assembly in IED Improvised Explosive Device
September, 2006 IMU Islamic Movement of Uzbekistan
4.1 Findings of POTA Review Committee in a Case IPKF Indian Peace Keeping Force
4.2 Membership of and Fund Raising for a ‘terrorist organization’ IRA Irish Republican Army
4.3 Review Committees ISI Inter-Services Intelligence
4.4 Federal Agency for Combatting Terrorism IT Information Technology
7.1 The National Curriculum Framework, 2005 J&K Jammu & Kashmir
7.2 Some Recommendations for Education for Peace Suggested by the National Focus JeM Jaish-e-Mohammed
Group JKIF Jammu & Kashmir Islamic Front
7.3 The Government’s Resolve to Fight Terrorism KKK Ku Klux Klan

x xi
* *
The contents of this Chapter have been classified as ‘Confidential’ and hence are not included in this printed version. The contents of this Table have been classified as ‘Confidential’ and hence are not included in this printed version.
 CONTENTS LIST OF TABLES
3.1 Security Situation during the Years 2003-07 (North East)
Chapter1 Introduction 1 3.2 Comparative Population Composition in Some Districts of Assam*
Chapter 2 Terrorism - Types, Genesis and Definition 3 3.3 Percentage Growth of Population of Different Religious Communities between 1991
and 2001 in Some Districts of Assam*
Chapter 3 Terrorism in India 18 3.4 State-wise Number of Incidents and Casualties during the Period 2003-07 (Naxalism
Chapter 4 Dealing with Terrorism: Legal Framework 38 related Violence)
Chapter 5 Measures against Financing of Terrorism 80 5.1 Anti-Money Laundering Statistics (USA)

Chapter 6 Institutional and Administrative Measures* 110 LIST OF FIGURES

3.1 Trend of Terrorist Violence in Jammu & Kashmir
Chapter 7 Civil Society, Media and Citizens 111
LIST OF ABBREVIATIONS
Conclusion 135 AICCCR All India Co-ordination Committee of Communist Revolutionaries
Summary of Recommendations 137 CIA Central Intelligence Agency
LIST OF ANNEXURES COFEPOSA The Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act
Annexure-I Recommendations Made at the ‘National Workshop on Public Order’, CPI Communist Party of India
March 11th - 12th 2006, at Sardar Vallabhbhai Patel National Police CPI (ML) Communist Party of India (Marxist-Leninist)
Academy, Hyderabad CPM Communist Party of India (Marxist)
Annexure-II Readings and References Cr.PC Criminal Procedure Code
DCSINT Deputy Chief of Staff for Intelligence
Annexure-IV(1) Comparison of Anti-terrorism Legislations in India
DoS Denial of Service
Annexure-IV(2) Some Salient Features of Anti-terrorist Legislations in Other Countries EPRLF Eelam People’s Revolutionary Liberation Front
List of Reports submitted so far FBI Federal Bureau of Investigation
HEU Highly Enriched Uranium
LIST OF BOXES
HUJI Harkat-ul-Jehad-al-Islami
3.1 Balancing Counter-Terrorism Efforts and Human Rights HUM Harkat-ul-Mujahideen
3.2 Development and Extremism IB Intelligence Bureau
3.3 Global Counter-Terrorism Strategy adopted by the UN General Assembly in IED Improvised Explosive Device
September, 2006 IMU Islamic Movement of Uzbekistan
4.1 Findings of POTA Review Committee in a Case IPKF Indian Peace Keeping Force
4.2 Membership of and Fund Raising for a ‘terrorist organization’ IRA Irish Republican Army
4.3 Review Committees ISI Inter-Services Intelligence
4.4 Federal Agency for Combatting Terrorism IT Information Technology
7.1 The National Curriculum Framework, 2005 J&K Jammu & Kashmir
7.2 Some Recommendations for Education for Peace Suggested by the National Focus JeM Jaish-e-Mohammed
Group JKIF Jammu & Kashmir Islamic Front
7.3 The Government’s Resolve to Fight Terrorism KKK Ku Klux Klan

x xi
* *
The contents of this Chapter have been classified as ‘Confidential’ and hence are not included in this printed version. The contents of this Table have been classified as ‘Confidential’ and hence are not included in this printed version.
 LeT Laskar-e-Tayyaba
LOC Line of Control
LTTE Liberation Tigers of Tamil Eelam
LWE
MCC
MLA
Left Wing Extremism
Maoist Communist Centre
Member of Legislative Assembly
INTRODUCTION 1
MOS Minister of State
MP Member of Parliament 1.1 In its Third Report, on “Crisis Management”, the Commission had stated that crisis
NATO North Atlantic Treaty Organisation situations caused by hostile elements like terrorists and extremists involving taking of hostages,
NBC Nuclear Biological and Chemical hijacking of airplanes or severely disrupting public order and administration would be dealt
NHRC National Human Rights Commission with in its subsequent reports.
POK Pakistan Occupied Kashmir
POTA Prevention of Terrorism Act 1.2 In its Fifth Report, on “Public Order”, the Commission observed that in view of the
PWG People’s War Group growing incidence of terrorist violence in the country there is an emerging consensus in India
RAW Research and Analysis Wing that a strong legal framework should be created to deal with terrorism. The Commission
SIMI Students’ Islamic Movement of India pointed out that there is a “felt need to strengthen the hands of security forces in the fight against
SVPNPA Sardar Vallabhbhai Patel National Police Academy terrorism even as human rights and constitutional values are protected”1. Accordingly, the Commission
TADA Terrorist and Disruptive Activities (Prevention) Act had decided that it would deal with issues pertaining to terrorism in a separate report
UK United Kingdom particularly since terrorism today has transcended pure crisis management or public order
ULPA Unlawful Activities (Prevention) Act issues and is enmeshed in an intricate web of organized crime, illegal financial transfers and
ULPAA Unlawful Activities (Prevention) Amendment Act trafficking in arms and drugs, which poses a grave threat to national security. The existence
UN United Nations of sleeper cells, the spread of modern communications and the increasing use of modern
US United States weapons, technology and tactics have enabled the merchants of terror to spread their tentacles
USA United States of America far and wide subjecting the entire country to their nefarious designs. A multi-cultural, liberal
USSR Union of Soviet Socialist Republics and democratic country like India, given its geopolitical situation, is particularly vulnerable
WMD Weapons of Mass Destruction to acts of terror with statistics showing that Indians have suffered the maximum casualties at
the hands of terrorists. The menace of terrorism is thus an unprecedented threat which requires
extraordinary and multi-pronged action by all organs of government and society.

1.3 This Report on capacity building to combat terrorism has been prepared accordingly
and comprises seven chapters:
Chapter 1 : Introduction
Chapter 2 : Terrorism - Types, Genesis and Definition
Chapter 3 : Terrorism in India
Chapter 4 : Dealing with Terrorism: Legal Framework
Chapter 5 : Measures against Financing of Terrorism

xii 1
1
Paragraph 2.2.2.6 of the Fifth Report.
 LeT Laskar-e-Tayyaba
LOC Line of Control
LTTE Liberation Tigers of Tamil Eelam
LWE
MCC
MLA
Left Wing Extremism
Maoist Communist Centre
Member of Legislative Assembly
INTRODUCTION 1
MOS Minister of State
MP Member of Parliament 1.1 In its Third Report, on “Crisis Management”, the Commission had stated that crisis
NATO North Atlantic Treaty Organisation situations caused by hostile elements like terrorists and extremists involving taking of hostages,
NBC Nuclear Biological and Chemical hijacking of airplanes or severely disrupting public order and administration would be dealt
NHRC National Human Rights Commission with in its subsequent reports.
POK Pakistan Occupied Kashmir
POTA Prevention of Terrorism Act 1.2 In its Fifth Report, on “Public Order”, the Commission observed that in view of the
PWG People’s War Group growing incidence of terrorist violence in the country there is an emerging consensus in India
RAW Research and Analysis Wing that a strong legal framework should be created to deal with terrorism. The Commission
SIMI Students’ Islamic Movement of India pointed out that there is a “felt need to strengthen the hands of security forces in the fight against
SVPNPA Sardar Vallabhbhai Patel National Police Academy terrorism even as human rights and constitutional values are protected”1. Accordingly, the Commission
TADA Terrorist and Disruptive Activities (Prevention) Act had decided that it would deal with issues pertaining to terrorism in a separate report
UK United Kingdom particularly since terrorism today has transcended pure crisis management or public order
ULPA Unlawful Activities (Prevention) Act issues and is enmeshed in an intricate web of organized crime, illegal financial transfers and
ULPAA Unlawful Activities (Prevention) Amendment Act trafficking in arms and drugs, which poses a grave threat to national security. The existence
UN United Nations of sleeper cells, the spread of modern communications and the increasing use of modern
US United States weapons, technology and tactics have enabled the merchants of terror to spread their tentacles
USA United States of America far and wide subjecting the entire country to their nefarious designs. A multi-cultural, liberal
USSR Union of Soviet Socialist Republics and democratic country like India, given its geopolitical situation, is particularly vulnerable
WMD Weapons of Mass Destruction to acts of terror with statistics showing that Indians have suffered the maximum casualties at
the hands of terrorists. The menace of terrorism is thus an unprecedented threat which requires
extraordinary and multi-pronged action by all organs of government and society.

1.3 This Report on capacity building to combat terrorism has been prepared accordingly
and comprises seven chapters:
Chapter 1 : Introduction
Chapter 2 : Terrorism - Types, Genesis and Definition
Chapter 3 : Terrorism in India
Chapter 4 : Dealing with Terrorism: Legal Framework
Chapter 5 : Measures against Financing of Terrorism

xii 1
1
Paragraph 2.2.2.6 of the Fifth Report.
 Combatting Terrorism
Chapter 6 : Institutional and Administrative Measures
Chapter 7 : Civil Society, Media and Citizens
1.4 The Commission has benefited greatly from interactions with a large number of experts
both within the Government and outside while preparing this Report. The Commission is
grateful to Hon’ble Mr Justice R.C. Lahoti, former Chief Justice of India, for his valuable
suggestions. A workshop was organised jointly with Sardar Vallabhbhai Patel National Police
Academy, Hyderabad on ‘Public Order’, and one working group examined the measures to
deal with terrorism (Annexure-I). The Commission discussed issues related to terrorism with
the State Governments during its visit to the States. The Commission is grateful for the
considerable assistance provided by Shri P.K.H. Tharakan, former Secretary (R&AW) who
worked as Advisor with the Commission and prepared a well researched paper. The
Commission is grateful to Shri P.C. Haldar, Director, IB; Shri Vijay Shanker, Director, CBI;
and Shri K.T.S. Tulsi, eminent advocate for valuable inputs. The Commission is also grateful
to Shri Shastri Ramachandran, Associate Editor, The Tribune for his contribution on the
‘Role of Media in dealing with terrorism’.
2 3
TERRORISM – TYPES, GENESIS AND DEFINITION 2
2.1 History
2.1.1 Terrorism is as old as the Roman Empire and it existed in some form or the other, be it
the Zealots in Judea or the Assassins in the 11th to 13th century with religion being a strong
motivating factor behind terrorist activities until the French Revolution. In fact, the term
“terrorism” originated from the Reign of Terror (Regime de la Terreur) of 1793-94.
2.1.2 Following the Second World War, there was a shift in the nature and locale of terrorist
activities around the world. The focus of terrorist activities shifted from Europe to the Middle
East, Africa and Asia with the emergence of various nationalistic and anti-colonial groups in
these regions, notably in Israel, Kenya, Cyprus, Algeria, Palestine and Malaya. The first
major act of terror, considered as the most deadly and spectacular terrorist operation till then,
was carried out by the Jewish Irgun (then led by Menachem Begin) when the King David
Hotel in Jerusalem was bombed in July 1946, killing nearly a hundred people.
2.1.3 Left wing extremism, based on their belief that terrorism is the only strategy of
revolutionary movement for the weak in the Third World (e.g. in Malaysia, Vietnam etc.),
surfaced in Europe and elsewhere as well, especially since the late 1950s. The Red Army
Faction in West Germany (also known as the Baader-Meinhof Group), the Red Army Faction
of Japan, the Wheathermen and Black Panthers in the USA, the Tupamaros of Uruguay and
several other left-extremist terrorist groups sprang up during the 1960s in different parts of
the world, including Naxalites and Maoists in India.
2.1.4 The Irish Republican Army/IRA, traced its origin to the period around 1919-21. Its
later incarnation, known as the Provisional Irish Republican Army was formed in1969 and
has carried out extensive terrorist attacks not only in Northern Ireland but in England as
well. A historic peace settlement was arrived at through the Good Friday Agreement of 1998
between the contending Irish groups and the UK Government.
2.1.5 International terrorism today is marked by the large number of transnational terrorist
groups, mostly motivated by the Islamist fundamentalist ideology with Osama bin Laden’s
Al-Qaeda at the forefront, and the Taliban in Afghanistan as its close ally. The rapid rise
 Combatting Terrorism
Chapter 6 : Institutional and Administrative Measures
Chapter 7 : Civil Society, Media and Citizens
1.4 The Commission has benefited greatly from interactions with a large number of experts
both within the Government and outside while preparing this Report. The Commission is
grateful to Hon’ble Mr Justice R.C. Lahoti, former Chief Justice of India, for his valuable
suggestions. A workshop was organised jointly with Sardar Vallabhbhai Patel National Police
Academy, Hyderabad on ‘Public Order’, and one working group examined the measures to
deal with terrorism (Annexure-I). The Commission discussed issues related to terrorism with
the State Governments during its visit to the States. The Commission is grateful for the
considerable assistance provided by Shri P.K.H. Tharakan, former Secretary (R&AW) who
worked as Advisor with the Commission and prepared a well researched paper. The
Commission is grateful to Shri P.C. Haldar, Director, IB; Shri Vijay Shanker, Director, CBI;
and Shri K.T.S. Tulsi, eminent advocate for valuable inputs. The Commission is also grateful
to Shri Shastri Ramachandran, Associate Editor, The Tribune for his contribution on the
‘Role of Media in dealing with terrorism’.
2 3
TERRORISM – TYPES, GENESIS AND DEFINITION 2
2.1 History
2.1.1 Terrorism is as old as the Roman Empire and it existed in some form or the other, be it
the Zealots in Judea or the Assassins in the 11th to 13th century with religion being a strong
motivating factor behind terrorist activities until the French Revolution. In fact, the term
“terrorism” originated from the Reign of Terror (Regime de la Terreur) of 1793-94.
2.1.2 Following the Second World War, there was a shift in the nature and locale of terrorist
activities around the world. The focus of terrorist activities shifted from Europe to the Middle
East, Africa and Asia with the emergence of various nationalistic and anti-colonial groups in
these regions, notably in Israel, Kenya, Cyprus, Algeria, Palestine and Malaya. The first
major act of terror, considered as the most deadly and spectacular terrorist operation till then,
was carried out by the Jewish Irgun (then led by Menachem Begin) when the King David
Hotel in Jerusalem was bombed in July 1946, killing nearly a hundred people.
2.1.3 Left wing extremism, based on their belief that terrorism is the only strategy of
revolutionary movement for the weak in the Third World (e.g. in Malaysia, Vietnam etc.),
surfaced in Europe and elsewhere as well, especially since the late 1950s. The Red Army
Faction in West Germany (also known as the Baader-Meinhof Group), the Red Army Faction
of Japan, the Wheathermen and Black Panthers in the USA, the Tupamaros of Uruguay and
several other left-extremist terrorist groups sprang up during the 1960s in different parts of
the world, including Naxalites and Maoists in India.
2.1.4 The Irish Republican Army/IRA, traced its origin to the period around 1919-21. Its
later incarnation, known as the Provisional Irish Republican Army was formed in1969 and
has carried out extensive terrorist attacks not only in Northern Ireland but in England as
well. A historic peace settlement was arrived at through the Good Friday Agreement of 1998
between the contending Irish groups and the UK Government.
2.1.5 International terrorism today is marked by the large number of transnational terrorist
groups, mostly motivated by the Islamist fundamentalist ideology with Osama bin Laden’s
Al-Qaeda at the forefront, and the Taliban in Afghanistan as its close ally. The rapid rise
 Combatting Terrorism
of the Talibans during the anti-Soviet militant movement was made possible largely because
of extensive patronage by USA’s CIA and Pakistan’s ISI, with billions of dollars in cash
and in kind having been poured into the region via Pakistan. For a few years in the recent
past, it looked as though the Taliban was effectively decimated in the wake of the ‘war
against terror’ waged in Afghanistan by the USA in collaboration with its allies. But
during the past couple of years’ the Taliban appears to be fast regaining their lost ground.
This is already having serious security implications not only in Afghanistan but also in
Pakistan and India.
2.2 Types of Terrorism
2.2.1 Terrorists are motivated by different goals and objectives. Depending on the objectives
of the group/groups, the nature of terrorism also differs. The major types of terrorist operations
commonly identified globally include:
2.2.2 Ethno-Nationalist Terrorism
Terrorism motivated by ethno-nationalist and separatist aspirations became prominent
only after the Second World War and dominated the terrorist agenda around the world for
more than 50 years until religious terrorism came to occupy the centre stage. Ethnic terrorism
can be defined, according to Daniel Byman2, as deliberate violence by a subnational ethnic
group to advance its cause. Such violence usually focuses either on the creation of a separate
State or on the elevation of the status of one ethnic group over others. Tamil Nationalist
groups in Sri Lanka and insurgent groups in North East India are examples of ethno-
nationalist terrorist activities.
2.2.3 Religious Terrorism
Present-day terrorist activities around the world are motivated largely by religious imperatives.
According to Hoffman3, the practitioners of terrorism motivated either in whole or in part by
a religious imperative consider violence as a divine duty or a sacramental act. It embraces
different means of legitimisation and justification compared to other terrorist groups, and
these distinguishing factors make religious terrorism more destructive in nature.
2.2.4 Ideology Oriented Terrorism
Any ideology can be used to support the use of violence and terrorism. Ideology oriented
terrorism is generally classified into two: Left-wing and Right-wing terrorism.
(a) Left-wing Terrorism-Violence against the ruling elite mostly by the peasant class
motivated by what are called leftist ideologies have occurred time and again in history.
4 5
2 4
Source: Refer to Annexure II of this Report where the readings and general references are provided separately.
3
Source: Refer to Annexure II of this Report.
Terrorism – Types, Genesis and Definition
However, the ideological basis for the left and subsequent violent movements was
provided by the writings of Marx and Engels. This was supported by the writings and
speeches of later communists like Lenin and Mao Tse-tung (Mao Zedong). Leftist
ideologies believe that all the existing social relations and state structures in the capitalist
society are exploitative in character and a revolutionary change through violent means
is essential. Examples of leftist ideologies that have resorted to the use of terror are
numerous. These include; the Red Army Faction or Baader Meinhof Gang in the
former West Germany, the Red Brigades in Italy, the 17 November Movement in
Greece, the Shining Path of Peru, Peoples Revolutionary Army and the Motoneros of
Argentina. The Maoist groups in India and Nepal are the most easily identifiable
groups closer home.
(b) Right-wing Terrorism- Right-wing groups generally seek to maintain the status-quo
or to return to some past situation that they feel should have been conserved. Sometimes,
groups espousing rightist ideologies might assume ethnic/racist character too. They
may force the government to acquire a territory or to intervene to protect the rights of
an ‘oppressed’ minority in a neighboring country (i.e : the Nazi Party in Germany).
Violence against migrant communities also comes under this category of terrorist
violence. It is to be noted here that religion can play a supportive role to rightist
violence. Examples of these are: Nazism in Germany, Fascists in Italy, white supremacy
movements in the US known as Ku Klux Klan (KKK), the Green Jackets of Denmark
in the 1980s etc.
2.2.5 State-sponsored Terrorism
2.2.5.1 State-sponsored terrorism or warfare by proxy is as old as the history of military
conflict. Walter Laqueur notes that such established practices existed in ancient times; in the
Oriental empires, in Rome and Byzantium, in Asia and Europe.4 However, state-sponsored
terrorism on a massive scale reappeared in international politics in the 1960s and 1970s, and
today along with religious terrorism, state-sponsored terrorism has considerably altered the
nature of terrorist activities around the world.
2.2.5.2 In recent times, some countries have embraced terrorism as a deliberate instrument of
foreign policy. One distinction of state sponsored terrorism from other forms of terrorist activity
is that it is initiated to obtain certain clearly defined foreign policy objectives rather than
grabbing media attention or targeting the potential audience. Given this character, it operates
under fewer constraints and causes greater casualty on the target (Hoffman, 1998). In a cost-
benefit analysis, state-sponsored terrorism is the most effective means of terrorism from the
perspective of the perpetrator.
Source: Refer to Annexure II of this Report.
 Combatting Terrorism
of the Talibans during the anti-Soviet militant movement was made possible largely because
of extensive patronage by USA’s CIA and Pakistan’s ISI, with billions of dollars in cash
and in kind having been poured into the region via Pakistan. For a few years in the recent
past, it looked as though the Taliban was effectively decimated in the wake of the ‘war
against terror’ waged in Afghanistan by the USA in collaboration with its allies. But
during the past couple of years’ the Taliban appears to be fast regaining their lost ground.
This is already having serious security implications not only in Afghanistan but also in
Pakistan and India.
2.2 Types of Terrorism
2.2.1 Terrorists are motivated by different goals and objectives. Depending on the objectives
of the group/groups, the nature of terrorism also differs. The major types of terrorist operations
commonly identified globally include:
2.2.2 Ethno-Nationalist Terrorism
Terrorism motivated by ethno-nationalist and separatist aspirations became prominent
only after the Second World War and dominated the terrorist agenda around the world for
more than 50 years until religious terrorism came to occupy the centre stage. Ethnic terrorism
can be defined, according to Daniel Byman2, as deliberate violence by a subnational ethnic
group to advance its cause. Such violence usually focuses either on the creation of a separate
State or on the elevation of the status of one ethnic group over others. Tamil Nationalist
groups in Sri Lanka and insurgent groups in North East India are examples of ethno-
nationalist terrorist activities.
2.2.3 Religious Terrorism
Present-day terrorist activities around the world are motivated largely by religious imperatives.
According to Hoffman3, the practitioners of terrorism motivated either in whole or in part by
a religious imperative consider violence as a divine duty or a sacramental act. It embraces
different means of legitimisation and justification compared to other terrorist groups, and
these distinguishing factors make religious terrorism more destructive in nature.
2.2.4 Ideology Oriented Terrorism
Any ideology can be used to support the use of violence and terrorism. Ideology oriented
terrorism is generally classified into two: Left-wing and Right-wing terrorism.
(a) Left-wing Terrorism-Violence against the ruling elite mostly by the peasant class
motivated by what are called leftist ideologies have occurred time and again in history.
4 5
2 4
Source: Refer to Annexure II of this Report where the readings and general references are provided separately.
3
Source: Refer to Annexure II of this Report.
Terrorism – Types, Genesis and Definition
However, the ideological basis for the left and subsequent violent movements was
provided by the writings of Marx and Engels. This was supported by the writings and
speeches of later communists like Lenin and Mao Tse-tung (Mao Zedong). Leftist
ideologies believe that all the existing social relations and state structures in the capitalist
society are exploitative in character and a revolutionary change through violent means
is essential. Examples of leftist ideologies that have resorted to the use of terror are
numerous. These include; the Red Army Faction or Baader Meinhof Gang in the
former West Germany, the Red Brigades in Italy, the 17 November Movement in
Greece, the Shining Path of Peru, Peoples Revolutionary Army and the Motoneros of
Argentina. The Maoist groups in India and Nepal are the most easily identifiable
groups closer home.
(b) Right-wing Terrorism- Right-wing groups generally seek to maintain the status-quo
or to return to some past situation that they feel should have been conserved. Sometimes,
groups espousing rightist ideologies might assume ethnic/racist character too. They
may force the government to acquire a territory or to intervene to protect the rights of
an ‘oppressed’ minority in a neighboring country (i.e : the Nazi Party in Germany).
Violence against migrant communities also comes under this category of terrorist
violence. It is to be noted here that religion can play a supportive role to rightist
violence. Examples of these are: Nazism in Germany, Fascists in Italy, white supremacy
movements in the US known as Ku Klux Klan (KKK), the Green Jackets of Denmark
in the 1980s etc.
2.2.5 State-sponsored Terrorism
2.2.5.1 State-sponsored terrorism or warfare by proxy is as old as the history of military
conflict. Walter Laqueur notes that such established practices existed in ancient times; in the
Oriental empires, in Rome and Byzantium, in Asia and Europe.4 However, state-sponsored
terrorism on a massive scale reappeared in international politics in the 1960s and 1970s, and
today along with religious terrorism, state-sponsored terrorism has considerably altered the
nature of terrorist activities around the world.
2.2.5.2 In recent times, some countries have embraced terrorism as a deliberate instrument of
foreign policy. One distinction of state sponsored terrorism from other forms of terrorist activity
is that it is initiated to obtain certain clearly defined foreign policy objectives rather than
grabbing media attention or targeting the potential audience. Given this character, it operates
under fewer constraints and causes greater casualty on the target (Hoffman, 1998). In a cost-
benefit analysis, state-sponsored terrorism is the most effective means of terrorism from the
perspective of the perpetrator.
Source: Refer to Annexure II of this Report.
 Combatting Terrorism
2.2.5.3 State-sponsored terrorism was widely employed in Central Asia in the nineteenth
century. Russians supported their fellow Slavs in the Balkans. Bulgaria used the Macedonian
revolutionary terrorists against Yugoslavia after World War I. The Western powers under the
auspices of the US supported all kinds of nationalist and anti-communist rebels throughout
the Cold War. The Soviet Union was no different in its operations during this period. Countries
like Iran, Iraq, Sudan, Libya North Korea have been engaged in sponsorship of political
violence of different nature in their ‘enemy’ countries. India has been facing this problem
from Pakistan since Independence.
2.2.6 Narco-terrorism
2.2.6.1 Narco-terrorism is an interesting concept, which can fall in the category of either
‘Types of Terrorism’ or ‘Means of Terrorism’, depending on how it is defined. The term was
first used in 1983 by the former President of Peru, Belaunde Terry to describe campaigns by
drug traffickers using terrorist methods such as the use of car bombs, assassinations and
kidnapping against the anti-narcotics police in Coloumbia and Peru. Though initially used
in the context of drug trafficking related terrorism in South America, the term has come to be
associated with terrorist groups and activities around the world and more so in the Central
and South-East Asia. Narco-terrorism has been defined by the Canadian Security Intelligence
Service as ‘the attempt by narcotics traffickers to influence the policies of the Government by
systematic threat or use by violence’. However, it is also possible to view narco-terrorism as a
means of terrorism or at any rate as a means of funding terrorism. As the term itself suggests,
narco-terrorism combines two criminal activities; drug trafficking and terrorist violence. Narco-
terrorism is motivated mainly by economic reasons as it helps the terrorist organizations raise
huge sums of money with minimum cost for their activities. Thus the political, ideological,
religious and the ethno-nationalist motives generally associated with terrorism are secondary
to the economic gains associated with it.
2.2.6.2 In a survey conducted by the United Nations, links between drug traffickers and
terrorist groups were observed in 19 out of 38 countries. These countries include Algeria,
Colombia, Comoros, Ecuador, Germany, Guernsey, India, Italy, Japan, Kenya, Kyrgyzstan,
Lithuania, Mauritius, Saudi Arabia, Turkey, the United Kingdom, the United States of
America, Uzbekistan and Yemen. Major terrorist groups operating on these lines in these
countries are: Al Qaeda, the Colombia-based AUC (United Defences of Columbia), ELN
(National Liberation Army), Colombia, and FARC (Revolutionary Armed Forces of
Colombia), the tri-border Islamic Group in Argentina, Paraguay and Brazil, the Shining
Path in Peru, the PKK (Kurdistan Workers Party) in Turkey, IMU (Islamic Movement of
Uzbekistan) in Uzbekistan, the Islamic Jihad in Palestine, Hizballah in Lebanon, and the
RIRA (Real Irish Republican Army) in Northern Ireland5. Islamist terrorist groups in India
6 7
5 6
Cited in Y von Dandurand and Vivienne Chin, “Links Between Terrorism and Other Forms of Crime” April 2004.
Terrorism – Types, Genesis and Definition
supported by the Pakistan ISI are reported to be active in drug trafficking along the Kashmir
Valley and also in other parts of the country.
2.3 Definition of Terrorism
2.3.1 There are two reasons why it is important to define the word ‘terrorism’. Firstly, its
definition is one way of understanding the problem. But more importantly, in the context of
this Report, which deals with the governance aspects of combatting terrorism, a workable or
working definition would be required with a view to have special laws for tackling terrorism
within the country and to get terrorists extradited from abroad.
2.3.2 It is somewhat surprising that despite terrorism being recognised as a global phenomenon,
attempts in the past for arriving at an internationally accepted definition of terrorism have
proved futile. According to some observers, this ambivalence is primarily due to two reasons
: firstly, a ‘terrorist’ in one country may be viewed as a ‘freedom fighter’ in another; secondly,
it is known that some States resort to or encourage various kinds of criminal acts, clandestinely,
through their own agencies or hired agents to subvert or to otherwise destabilize another
lawfully established government or in extreme cases get important political or governmental
personalities of another State assassinated. History is replete with instances of acts of this
nature. Hence, there is an obvious lack of political will, if not resistance to any universally
acceptable definition of terrorism.
2.3.3 While Member-States of the United Nations have not arrived at a consensus regarding
the definition of terrorism; the UN’s ‘academic consensus definition’ given by Alex P. Schmid is
perhaps the most widely accepted one. According to him, “terrorism is an anxiety-inspiring
method of repeated violent action, employed by (semi-) clandestine individual, group or state actors, for
idiosyncratic, criminal or political reasons, whereby - in contrast to assassination - the direct targets of
violence are not the main targets. The immediate human victims of violence are generally chosen randomly
(targets of opportunity) or selectively (representative or symbolic targets) from a target population, and
serve as message generators. Threat and violence-based communication processes between terrorist
(organization), (imperiled) victims, and main targets are used to manipulate the main target (audience(s)),
turning it into a target of terror, a target of demands, or a target of attention, depending on whether
intimidation, coercion, or propaganda is primarily sought”.6 The short legal definition proposed by
Schmid to the United Nations Crime Branch (1992) is that Act of Terrorism = Peacetime
Equivalent of War Crime.7 This, as discussed in the following chapters, is a significant
definition with implications for an anti-terrorism strategy.
2.3.4 Schmid himself had, however, wondered - after listing out 109 different definitions of
‘terrorism’ in his monumental survey, ‘Political Terrorism: A Research Guide’ - whether that
Source: Schmid, Jongman et al. Political terrorism: a new guide to actors, authors, concepts, data bases, theories and, literature; 1988; quoted in entry on ‘Alex
P. Schmid’: http://en.wikipedia.org/wiki/Alex_P._Schmid
7
Source: quoted in entry on ‘Alex P. Schmid’: http://en.wikipedia.org/wiki/Definition_of_terrorism
 Combatting Terrorism
2.2.5.3 State-sponsored terrorism was widely employed in Central Asia in the nineteenth
century. Russians supported their fellow Slavs in the Balkans. Bulgaria used the Macedonian
revolutionary terrorists against Yugoslavia after World War I. The Western powers under the
auspices of the US supported all kinds of nationalist and anti-communist rebels throughout
the Cold War. The Soviet Union was no different in its operations during this period. Countries
like Iran, Iraq, Sudan, Libya North Korea have been engaged in sponsorship of political
violence of different nature in their ‘enemy’ countries. India has been facing this problem
from Pakistan since Independence.
2.2.6 Narco-terrorism
2.2.6.1 Narco-terrorism is an interesting concept, which can fall in the category of either
‘Types of Terrorism’ or ‘Means of Terrorism’, depending on how it is defined. The term was
first used in 1983 by the former President of Peru, Belaunde Terry to describe campaigns by
drug traffickers using terrorist methods such as the use of car bombs, assassinations and
kidnapping against the anti-narcotics police in Coloumbia and Peru. Though initially used
in the context of drug trafficking related terrorism in South America, the term has come to be
associated with terrorist groups and activities around the world and more so in the Central
and South-East Asia. Narco-terrorism has been defined by the Canadian Security Intelligence
Service as ‘the attempt by narcotics traffickers to influence the policies of the Government by
systematic threat or use by violence’. However, it is also possible to view narco-terrorism as a
means of terrorism or at any rate as a means of funding terrorism. As the term itself suggests,
narco-terrorism combines two criminal activities; drug trafficking and terrorist violence. Narco-
terrorism is motivated mainly by economic reasons as it helps the terrorist organizations raise
huge sums of money with minimum cost for their activities. Thus the political, ideological,
religious and the ethno-nationalist motives generally associated with terrorism are secondary
to the economic gains associated with it.
2.2.6.2 In a survey conducted by the United Nations, links between drug traffickers and
terrorist groups were observed in 19 out of 38 countries. These countries include Algeria,
Colombia, Comoros, Ecuador, Germany, Guernsey, India, Italy, Japan, Kenya, Kyrgyzstan,
Lithuania, Mauritius, Saudi Arabia, Turkey, the United Kingdom, the United States of
America, Uzbekistan and Yemen. Major terrorist groups operating on these lines in these
countries are: Al Qaeda, the Colombia-based AUC (United Defences of Columbia), ELN
(National Liberation Army), Colombia, and FARC (Revolutionary Armed Forces of
Colombia), the tri-border Islamic Group in Argentina, Paraguay and Brazil, the Shining
Path in Peru, the PKK (Kurdistan Workers Party) in Turkey, IMU (Islamic Movement of
Uzbekistan) in Uzbekistan, the Islamic Jihad in Palestine, Hizballah in Lebanon, and the
RIRA (Real Irish Republican Army) in Northern Ireland5. Islamist terrorist groups in India
6 7
5 6
Cited in Y von Dandurand and Vivienne Chin, “Links Between Terrorism and Other Forms of Crime” April 2004.
Terrorism – Types, Genesis and Definition
supported by the Pakistan ISI are reported to be active in drug trafficking along the Kashmir
Valley and also in other parts of the country.
2.3 Definition of Terrorism
2.3.1 There are two reasons why it is important to define the word ‘terrorism’. Firstly, its
definition is one way of understanding the problem. But more importantly, in the context of
this Report, which deals with the governance aspects of combatting terrorism, a workable or
working definition would be required with a view to have special laws for tackling terrorism
within the country and to get terrorists extradited from abroad.
2.3.2 It is somewhat surprising that despite terrorism being recognised as a global phenomenon,
attempts in the past for arriving at an internationally accepted definition of terrorism have
proved futile. According to some observers, this ambivalence is primarily due to two reasons
: firstly, a ‘terrorist’ in one country may be viewed as a ‘freedom fighter’ in another; secondly,
it is known that some States resort to or encourage various kinds of criminal acts, clandestinely,
through their own agencies or hired agents to subvert or to otherwise destabilize another
lawfully established government or in extreme cases get important political or governmental
personalities of another State assassinated. History is replete with instances of acts of this
nature. Hence, there is an obvious lack of political will, if not resistance to any universally
acceptable definition of terrorism.
2.3.3 While Member-States of the United Nations have not arrived at a consensus regarding
the definition of terrorism; the UN’s ‘academic consensus definition’ given by Alex P. Schmid is
perhaps the most widely accepted one. According to him, “terrorism is an anxiety-inspiring
method of repeated violent action, employed by (semi-) clandestine individual, group or state actors, for
idiosyncratic, criminal or political reasons, whereby - in contrast to assassination - the direct targets of
violence are not the main targets. The immediate human victims of violence are generally chosen randomly
(targets of opportunity) or selectively (representative or symbolic targets) from a target population, and
serve as message generators. Threat and violence-based communication processes between terrorist
(organization), (imperiled) victims, and main targets are used to manipulate the main target (audience(s)),
turning it into a target of terror, a target of demands, or a target of attention, depending on whether
intimidation, coercion, or propaganda is primarily sought”.6 The short legal definition proposed by
Schmid to the United Nations Crime Branch (1992) is that Act of Terrorism = Peacetime
Equivalent of War Crime.7 This, as discussed in the following chapters, is a significant
definition with implications for an anti-terrorism strategy.
2.3.4 Schmid himself had, however, wondered - after listing out 109 different definitions of
‘terrorism’ in his monumental survey, ‘Political Terrorism: A Research Guide’ - whether that
Source: Schmid, Jongman et al. Political terrorism: a new guide to actors, authors, concepts, data bases, theories and, literature; 1988; quoted in entry on ‘Alex
P. Schmid’: http://en.wikipedia.org/wiki/Alex_P._Schmid
7
Source: quoted in entry on ‘Alex P. Schmid’: http://en.wikipedia.org/wiki/Definition_of_terrorism
 Combatting Terrorism
list contained all the elements necessary for a good definition. However, some illustrative
definitions are produced below, which would contribute to an understanding of the issues
involved in terrorism.
League of Nations Convention (1937): describes terrorism as “all criminal acts directed
against a State and intended or calculated to create a state of terror in the minds of particular
persons or a group of persons or the general public”. .
Article 2(1) of the UN General Assembly’s Draft Comprehensive Convention on
International Terrorism (fifty-fifth session, 2000) provides that;
(1) Any person commits an offence within the meaning of this Convention if that person, by any
means, unlawfully and intentionally, causes:
(a) Death or serious bodily injury to any person; or
(b) Serious damage to public or private property, including a place of public use, a State or government
facility, a public transportation system, an infrastructure facility or the environment; or
(c) Damage to property, places, facilities, or systems referred to in paragraph 1(b) of this Article,
resulting or likely to result in major economic loss, when the purpose of the conduct, by its nature or
context, is to intimidate a population, or to compel a Government or an international organization
to do or abstain from doing an act.
The General Assembly Resolution 51/210 contained a provision describing terrorism. It
maintained that “criminal acts intended or calculated to provoke a state of terror in the general
public, a group of persons or particular persons for political purposes are in any circumstance
unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic,
religious or any other nature that may be invoked to justify them”. On March 17, 2005 a UN
panel described terrorism as any act “intended to cause death or serious bodily harm to civilians or
non-combatants with the purpose of intimidating a population or compelling a government or an
international organization to do or abstain from doing any act”.
The European Union uses a definition of terrorism for legal/official purposes which is set out in
Article 1 of its Framework Decision on Combating Terrorism (2002). This provides that terrorist
offences are certain criminal offences set out in a list comprised largely of serious offences against
persons and property which, “given their nature or context, may seriously damage a country or an
international organisation where committed with the aim of: seriously intimidating a population
or unduly compelling a Government or international organisation to perform or abstain from
performing any act, or seriously destabilising or destroying the fundamental political, constitutional,
8 9
Terrorism – Types, Genesis and Definition
economic or social structures of a country or an international organisation.”
2.3.5 In the USA, there are three different sets of the definition of terrorism. The US Department
of Defence defines it as “the unlawful use of - or threatened use of - force or violence against individuals
or property to coerce or intimidate governments or societies, often to achieve political, religious or ideological
objectives”. The US State Department uses the definition of terrorism contained in Title 22 of
the United States Code, Section 2656F (d), i.e. “premeditated, politically motivated violence
perpetrated against non-combatant targets by sub-national groups or clandestine agents”. The US Federal
Bureau of Investigation defines terrorism as the unlawful use of force or violence against
persons or property or segment thereof in furtherance of political or social objectives. It is
apparent that each of the above three definitions reflects the priorities and particular interests
of the specific agencies.
2.3.6 By distinguishing terrorists/terrorism from other types of criminals and other forms of
crime, Bruce Hoffmann8 argues that terrorism is
• ineluctably political in its aims and motives
• violent - or, equally important, threatens violence
• designed to have far-reaching psychological repercussions beyond the immediate
victim or target
• conducted by an organization with an identifiable chain of command or conspiratorial
cell structure (whose members wear no uniform or identifying insignia) and
• perpetrated by a sub-national group or non-state entity.
2.3.7 By and large, these factors cover the relevant aspects of terrorism which are necessary
for understanding the phenomenon of terrorism. However, for formulating a definition of
terrorism which could be used for legal purposes, it is necessary to look at the constructs
adopted by various other States.
2.3.8 The definition of terrorism proposed by the Secretary General of the UN in September
2005 was accepted by France. According to him, terrorism is “any act meant to injure or kill the
civilians and the non-combatants, in order to intimidate a population, a government, or an organization
and incite them to commit an act against the perpetrators or on the contrary stop them from doing so”.
2.3.9 The Canadian Anti-Terrorism Act defines terrorist activity in its Criminal Code as “an
action that takes place either within or outside of Canada that is taken for political, religious or ideological
8
Source: Refer to Annexure II of this Report.
 Combatting Terrorism
list contained all the elements necessary for a good definition. However, some illustrative
definitions are produced below, which would contribute to an understanding of the issues
involved in terrorism.
League of Nations Convention (1937): describes terrorism as “all criminal acts directed
against a State and intended or calculated to create a state of terror in the minds of particular
persons or a group of persons or the general public”. .
Article 2(1) of the UN General Assembly’s Draft Comprehensive Convention on
International Terrorism (fifty-fifth session, 2000) provides that;
(1) Any person commits an offence within the meaning of this Convention if that person, by any
means, unlawfully and intentionally, causes:
(a) Death or serious bodily injury to any person; or
(b) Serious damage to public or private property, including a place of public use, a State or government
facility, a public transportation system, an infrastructure facility or the environment; or
(c) Damage to property, places, facilities, or systems referred to in paragraph 1(b) of this Article,
resulting or likely to result in major economic loss, when the purpose of the conduct, by its nature or
context, is to intimidate a population, or to compel a Government or an international organization
to do or abstain from doing an act.
The General Assembly Resolution 51/210 contained a provision describing terrorism. It
maintained that “criminal acts intended or calculated to provoke a state of terror in the general
public, a group of persons or particular persons for political purposes are in any circumstance
unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic,
religious or any other nature that may be invoked to justify them”. On March 17, 2005 a UN
panel described terrorism as any act “intended to cause death or serious bodily harm to civilians or
non-combatants with the purpose of intimidating a population or compelling a government or an
international organization to do or abstain from doing any act”.
The European Union uses a definition of terrorism for legal/official purposes which is set out in
Article 1 of its Framework Decision on Combating Terrorism (2002). This provides that terrorist
offences are certain criminal offences set out in a list comprised largely of serious offences against
persons and property which, “given their nature or context, may seriously damage a country or an
international organisation where committed with the aim of: seriously intimidating a population
or unduly compelling a Government or international organisation to perform or abstain from
performing any act, or seriously destabilising or destroying the fundamental political, constitutional,
8 9
Terrorism – Types, Genesis and Definition
economic or social structures of a country or an international organisation.”
2.3.5 In the USA, there are three different sets of the definition of terrorism. The US Department
of Defence defines it as “the unlawful use of - or threatened use of - force or violence against individuals
or property to coerce or intimidate governments or societies, often to achieve political, religious or ideological
objectives”. The US State Department uses the definition of terrorism contained in Title 22 of
the United States Code, Section 2656F (d), i.e. “premeditated, politically motivated violence
perpetrated against non-combatant targets by sub-national groups or clandestine agents”. The US Federal
Bureau of Investigation defines terrorism as the unlawful use of force or violence against
persons or property or segment thereof in furtherance of political or social objectives. It is
apparent that each of the above three definitions reflects the priorities and particular interests
of the specific agencies.
2.3.6 By distinguishing terrorists/terrorism from other types of criminals and other forms of
crime, Bruce Hoffmann8 argues that terrorism is
• ineluctably political in its aims and motives
• violent - or, equally important, threatens violence
• designed to have far-reaching psychological repercussions beyond the immediate
victim or target
• conducted by an organization with an identifiable chain of command or conspiratorial
cell structure (whose members wear no uniform or identifying insignia) and
• perpetrated by a sub-national group or non-state entity.
2.3.7 By and large, these factors cover the relevant aspects of terrorism which are necessary
for understanding the phenomenon of terrorism. However, for formulating a definition of
terrorism which could be used for legal purposes, it is necessary to look at the constructs
adopted by various other States.
2.3.8 The definition of terrorism proposed by the Secretary General of the UN in September
2005 was accepted by France. According to him, terrorism is “any act meant to injure or kill the
civilians and the non-combatants, in order to intimidate a population, a government, or an organization
and incite them to commit an act against the perpetrators or on the contrary stop them from doing so”.
2.3.9 The Canadian Anti-Terrorism Act defines terrorist activity in its Criminal Code as “an
action that takes place either within or outside of Canada that is taken for political, religious or ideological
8
Source: Refer to Annexure II of this Report.
 Combatting Terrorism
purposes and intimidates the public concerning its security, or compels a government to do something, by
intentionally killing, seriously harming or endangering a person, causing substantial property damage
that is likely to seriously harm people or by seriously interfering with or disrupting an essential service,
facility or system.”
2.3.10 According to the UK Terrorism Act, 2000, terrorism means the use or threat of action
where the use or threat is designed to influence the government or to intimidate the public or
a section of the public and is made for the purpose of advancing a political, religious or
ideological cause, and that; (a) involves serious violence against a person, (b) involves serious
damage to property, (c) endangers a person’s life, other than that of the person committing
the action, (d) creates a serious risk to the health or safety of the public or a section of the
public, or (e) is designed seriously to interfere with or seriously to disrupt an electronic system.
2.3.11 The Australian Anti Terrorism Act 2005 uses the definition given in the Criminal
Code of the country. It defines terrorism as an “action or threat of action that (a) causes serious harm
that is physical harm to a person, (b) causes serious damage to property, (c) causes a person’s death, (d)
endangers a person’s life, other than the life of the person taking the action, (e) creates a serious risk to the
health or safety of the public or a section of the public, (f) seriously interferes with, seriously disrupts, or
destroys, an electronic system including, but not limited to an information system or a telecommunications
system or a financial system or a system used for the delivery of essential government services or a system
used for, or by, an essential public utility or a system used for, or by, a transport system. The action or the
threat of action is made with the intention of advancing a political, religious or ideological cause and is
made with the intention of coercing, or influencing by intimidation, the government of the Commonwealth
or a state, Territory or foreign country, or of part of a state, Territory or foreign country; or intimidating
the public or a section of the public”.
2.4 Position in India
2.4.1 Terrorism as an offence does not figure in the Indian Penal Code of 1860 as amended
from time to time. In India, the first special law which attempted to define terrorism was the
Terrorist and Disruptive Activities (Prevention) Act, 1987, which was followed by the
Prevention of Terrorism Act, 2002 (POTA). With the repeal of the latter in 2004, the Unlawful
Activities (Prevention) Act, 1967 was amended to include the definition of a ‘terrorist act’.
2.4.2 (The) Terrorist and Disruptive Activities (Prevention) Act, 1987 mentions that “whoever
with intent to overawe the Government as by law established or to strike terror in the people or any section
of the people or to alienate any section of the people or to adversely affect the harmony amongst different
sections of the people does any act or thing by using bombs, dynamite or other explosive substances or
10
Terrorism – Types, Genesis and Definition
inflammable substances or lethal weapons or poisons or noxious gases or other chemicals or by any other
substances (whether biological or otherwise) of a hazardous nature in such a manner as to cause, or as is
likely to cause, death of, or injuries to, any person or persons or loss of, or damage to, or destruction of,
property or disruption of any supplies or services essential to the life of the community, or detains any person
and threatens to kill or injure such person in order to compel the Government or any other person to do or
abstain from doing any act, commits a terrorist act.”
2.4.3 According to the Prevention of Terrorism Act, 2002, a terrorist is whosoever “(a) with
intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people or any
section of the people does any act or thing by using bombs, dynamite or other explosive substances or
inflammable substances or firearms or other lethal weapons or poisons or noxious gases or other chemicals
or by any other substances (whether biological or otherwise) of a hazardous nature or by any other means
whatsoever, in such a manner as to cause, or likely to cause, death of, or injuries to any person or persons
or loss of, or damage to, or destruction of, property or disruption of any supplies or services essential to the
life of the community or causes damage or destruction of any property or equipment used or intended to be
used for the defense of India or in connection with any other purposes of the Government of India, any
State Government or any of their agencies, or detains any person and threatens to kill or injure such
person in order to compel the Government or any other person to do or abstain from doing any act; (b) is or
continues to be a member of an association declared unlawful under the Unlawful Activities (Prevention)
Act, 1967 (37 of 1967), or voluntarily does an act aiding or promoting in any manner the objects of
such association and in either case is in possession of any unlicensed firearms, ammunition, explosive or
other instrument or substance capable of causing mass destruction and commits any act resulting in loss of
human life or grievous injury to any person or causes significant damage to any property, commits a
terrorist act”. Further, according to POTA, a terrorist act also includes the act of raising funds intended
for the purpose of terrorism.
2.4.4 The Unlawful Activities (Prevention) Act, 1967, which was amended in 2004, defines
a ‘terrorist act’ thus –”whosoever, with intent to threaten the unity, integrity, security or sovereignty of
India or to strike terror in the people or any section of the people in India or in any foreign country, does
any act by using bombs, dynamite or other explosive substances or inflammable substances or firearms or
other lethal weapons or poisons or noxious gases or other chemicals or by any other substances, (whether
biological or otherwise) of a hazardous nature, in such a manner as to cause, or likely to cause, death of,
or injuries to any person or persons or loss of, or damage to, or destruction of, property or disruption of any
supplies or services essential to the life of the community in India or in any foreign country or causes
damage or destruction of any property or equipment used or intended to be used for the defence of India or
in connection with any other purposes of the Government of India, any State Government or any of their
agencies, or detains any person and threatens to kill or injure such person in order to compel the Government
11
 Combatting Terrorism
purposes and intimidates the public concerning its security, or compels a government to do something, by
intentionally killing, seriously harming or endangering a person, causing substantial property damage
that is likely to seriously harm people or by seriously interfering with or disrupting an essential service,
facility or system.”
2.3.10 According to the UK Terrorism Act, 2000, terrorism means the use or threat of action
where the use or threat is designed to influence the government or to intimidate the public or
a section of the public and is made for the purpose of advancing a political, religious or
ideological cause, and that; (a) involves serious violence against a person, (b) involves serious
damage to property, (c) endangers a person’s life, other than that of the person committing
the action, (d) creates a serious risk to the health or safety of the public or a section of the
public, or (e) is designed seriously to interfere with or seriously to disrupt an electronic system.
2.3.11 The Australian Anti Terrorism Act 2005 uses the definition given in the Criminal
Code of the country. It defines terrorism as an “action or threat of action that (a) causes serious harm
that is physical harm to a person, (b) causes serious damage to property, (c) causes a person’s death, (d)
endangers a person’s life, other than the life of the person taking the action, (e) creates a serious risk to the
health or safety of the public or a section of the public, (f) seriously interferes with, seriously disrupts, or
destroys, an electronic system including, but not limited to an information system or a telecommunications
system or a financial system or a system used for the delivery of essential government services or a system
used for, or by, an essential public utility or a system used for, or by, a transport system. The action or the
threat of action is made with the intention of advancing a political, religious or ideological cause and is
made with the intention of coercing, or influencing by intimidation, the government of the Commonwealth
or a state, Territory or foreign country, or of part of a state, Territory or foreign country; or intimidating
the public or a section of the public”.
2.4 Position in India
2.4.1 Terrorism as an offence does not figure in the Indian Penal Code of 1860 as amended
from time to time. In India, the first special law which attempted to define terrorism was the
Terrorist and Disruptive Activities (Prevention) Act, 1987, which was followed by the
Prevention of Terrorism Act, 2002 (POTA). With the repeal of the latter in 2004, the Unlawful
Activities (Prevention) Act, 1967 was amended to include the definition of a ‘terrorist act’.
2.4.2 (The) Terrorist and Disruptive Activities (Prevention) Act, 1987 mentions that “whoever
with intent to overawe the Government as by law established or to strike terror in the people or any section
of the people or to alienate any section of the people or to adversely affect the harmony amongst different
sections of the people does any act or thing by using bombs, dynamite or other explosive substances or
10
Terrorism – Types, Genesis and Definition
inflammable substances or lethal weapons or poisons or noxious gases or other chemicals or by any other
substances (whether biological or otherwise) of a hazardous nature in such a manner as to cause, or as is
likely to cause, death of, or injuries to, any person or persons or loss of, or damage to, or destruction of,
property or disruption of any supplies or services essential to the life of the community, or detains any person
and threatens to kill or injure such person in order to compel the Government or any other person to do or
abstain from doing any act, commits a terrorist act.”
2.4.3 According to the Prevention of Terrorism Act, 2002, a terrorist is whosoever “(a) with
intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people or any
section of the people does any act or thing by using bombs, dynamite or other explosive substances or
inflammable substances or firearms or other lethal weapons or poisons or noxious gases or other chemicals
or by any other substances (whether biological or otherwise) of a hazardous nature or by any other means
whatsoever, in such a manner as to cause, or likely to cause, death of, or injuries to any person or persons
or loss of, or damage to, or destruction of, property or disruption of any supplies or services essential to the
life of the community or causes damage or destruction of any property or equipment used or intended to be
used for the defense of India or in connection with any other purposes of the Government of India, any
State Government or any of their agencies, or detains any person and threatens to kill or injure such
person in order to compel the Government or any other person to do or abstain from doing any act; (b) is or
continues to be a member of an association declared unlawful under the Unlawful Activities (Prevention)
Act, 1967 (37 of 1967), or voluntarily does an act aiding or promoting in any manner the objects of
such association and in either case is in possession of any unlicensed firearms, ammunition, explosive or
other instrument or substance capable of causing mass destruction and commits any act resulting in loss of
human life or grievous injury to any person or causes significant damage to any property, commits a
terrorist act”. Further, according to POTA, a terrorist act also includes the act of raising funds intended
for the purpose of terrorism.
2.4.4 The Unlawful Activities (Prevention) Act, 1967, which was amended in 2004, defines
a ‘terrorist act’ thus –”whosoever, with intent to threaten the unity, integrity, security or sovereignty of
India or to strike terror in the people or any section of the people in India or in any foreign country, does
any act by using bombs, dynamite or other explosive substances or inflammable substances or firearms or
other lethal weapons or poisons or noxious gases or other chemicals or by any other substances, (whether
biological or otherwise) of a hazardous nature, in such a manner as to cause, or likely to cause, death of,
or injuries to any person or persons or loss of, or damage to, or destruction of, property or disruption of any
supplies or services essential to the life of the community in India or in any foreign country or causes
damage or destruction of any property or equipment used or intended to be used for the defence of India or
in connection with any other purposes of the Government of India, any State Government or any of their
agencies, or detains any person and threatens to kill or injure such person in order to compel the Government
11
 Combatting Terrorism
in India or the Government of a foreign country or any other person to do or abstain from doing any act,
commits a terrorist act”.
2.4.5 From the above, it is evident that while the laws of some countries (e.g. the USA,
Canada, the UK and Australia) speak of the intention behind the terrorist act being for the
purpose of advancing a ‘political, religious or ideological cause’, the Indian laws have avoided
any such intention or purpose being incorporated to define or describe a terrorist act. The
definition of terrorism is an important aspect of the legal framework to deal with terrorism.
The efficacy of the existing definition of terrorism is examined in detail in the Chapter,
Dealing with Terrorism: Legal Framework.
2.5 Means of Terrorism
2.5.1 The traditional tactics used by terrorists are attacks on persons and property using
weapons, bombs, IEDs, grenades, landmines etc, apart from hostage-taking, hijacking and
forcible take-over of buildings, especially Government/public buildings. These could be
classified as conventional means of terrorism. In addition, there is increasing resort to suicide
attacks and kidnapping. Besides, there are looming threats of terrorists acquiring Weapons
of Mass Destruction (nuclear, chemical or biological) and of cyber terrorism as well as
environmental terrorism.
2.5.1.1 Environmental Terrorism: While eco-terrorism is in protest against the destruction of
the natural environment, environmental terrorism is the premeditated damage caused to the
natural world for example during the Gulf War of 1991 when Saddam Hussein ordered the
detonation of more than 1000 oil wells which engulfed Kuwait in smoke.
2.5.1.2 Weapons of Mass Destruction: Weapons of Mass Destruction (WMD) are weapons that
can inflict heavy and indiscriminate damage on a given target. Nuclear, chemical and
biological weapons are the commonly identified weapons of mass destruction. Although the
term WMD has been in use for a long time, the possibility of acquisition of such weapons by
terrorist organizations, the perceived Iraqi possession of it and the US led war on Iraq brought
WMD into focus. The NATO Glossary of Terms and Definitions defines WMD as a weapon
that is capable of a high order of destruction and of being used in such a manner as to destroy
people, infrastructure, or other resources on a large scale. Most of these definitions consider
WMD as nuclear, biological and chemical weapons (NBC).
2.5.1.3 Chemical Weapons: A chemical attack could be the release of toxic gas caused by
attacking an industrial facility, or releasing a chemical that has been stolen from its legitimate
12
Terrorism – Types, Genesis and Definition
users to inflict heavy damage on the enemy (Archer, 2005). Chemical weapons are different
from conventional weapons or nuclear weapons as the destructive effect of chemical weapons
are not primarily due to any explosive force. According to the Chemical Weapons Convention
signed in 1993, any toxic chemical, regardless of its origin, is considered as a chemical weapon
if it is used for purposes that are prohibited. Toxins such as ricin, botulinum toxin, nerve
agents, lewisite, sarin etc are examples to this. Aum Shinrikyo’s attack with Sarin in a Tokyo
subway is the most notable example of a chemical weapons’ attack in recent times. Very
recently, Al-Qaeda claims to have acquired chemical weapons that can cause serious damage
to its potential enemies.
2.5.1.4 Nuclear weapons: It is argued that the engineering skills and equipment needed to
build the simplest form of nuclear weapon, a “gun” style bomb using highly enriched uranium
(HEU) – are not particularly complex; any well organized group can develop such a weapon.
However, what makes it difficult for terrorist organizations and non-State actors is the non-
availability and the complicated process and the cost involved in enriching uranium. Although,
there are no accounts of terrorist attacks using nuclear weapons, there are clear indications
that from the late 1990s onwards, Al-Qaeda has constantly been trying to acquire it with
the help of different State agencies9.
2.5.1.5 Biological Weapons:
2.5.1.5.1 Bio-terrorism is a relatively new form of terrorist activity that has emerged as a
result of the advancements in biotechnology being accessible to terrorist groups. The American
Center for Disease Control and Prevention, (CDC) defines bio-terrorism attack as “the deliberate
release of viruses, bacteria, or other germs (agents) used to cause illness or death in people,
animals, or plants”. These natural agents are changed to “increase their ability to cause
disease, make them resistant to current medicines, or to increase their ability to be spread
into the environment.” These are spread though air, water or food. Terrorists use biological
agents “because they can be extremely difficult to detect and do not cause illness for several
hours to several days.”
2.5.1.5.2 History of Bio-terrorism: There is historical evidence that some form of bio-terrorism
was resorted to by the ancient civilizations (Greeks, Romans and Persians) by polluting the
drinking water to cause serious harm to their enemies. The bio-terrorism tactics today are,
however, much more sinister and include biological weapons using germs to spread life-
threatening diseases among the targeted groups. The idea and concept of biological weapons
got greater attention in the late 19th and 20th century10.
2.5.1.5.3 During the First World War, Germany is believed to have used biological agents
13
1
9
Archer, 2005 (refer to Aneexure II of this Report)
10
Kietmann and Ruoff 2001 (refer to Aneexure II of this Report)
 Combatting Terrorism
in India or the Government of a foreign country or any other person to do or abstain from doing any act,
commits a terrorist act”.
2.4.5 From the above, it is evident that while the laws of some countries (e.g. the USA,
Canada, the UK and Australia) speak of the intention behind the terrorist act being for the
purpose of advancing a ‘political, religious or ideological cause’, the Indian laws have avoided
any such intention or purpose being incorporated to define or describe a terrorist act. The
definition of terrorism is an important aspect of the legal framework to deal with terrorism.
The efficacy of the existing definition of terrorism is examined in detail in the Chapter,
Dealing with Terrorism: Legal Framework.
2.5 Means of Terrorism
2.5.1 The traditional tactics used by terrorists are attacks on persons and property using
weapons, bombs, IEDs, grenades, landmines etc, apart from hostage-taking, hijacking and
forcible take-over of buildings, especially Government/public buildings. These could be
classified as conventional means of terrorism. In addition, there is increasing resort to suicide
attacks and kidnapping. Besides, there are looming threats of terrorists acquiring Weapons
of Mass Destruction (nuclear, chemical or biological) and of cyber terrorism as well as
environmental terrorism.
2.5.1.1 Environmental Terrorism: While eco-terrorism is in protest against the destruction of
the natural environment, environmental terrorism is the premeditated damage caused to the
natural world for example during the Gulf War of 1991 when Saddam Hussein ordered the
detonation of more than 1000 oil wells which engulfed Kuwait in smoke.
2.5.1.2 Weapons of Mass Destruction: Weapons of Mass Destruction (WMD) are weapons that
can inflict heavy and indiscriminate damage on a given target. Nuclear, chemical and
biological weapons are the commonly identified weapons of mass destruction. Although the
term WMD has been in use for a long time, the possibility of acquisition of such weapons by
terrorist organizations, the perceived Iraqi possession of it and the US led war on Iraq brought
WMD into focus. The NATO Glossary of Terms and Definitions defines WMD as a weapon
that is capable of a high order of destruction and of being used in such a manner as to destroy
people, infrastructure, or other resources on a large scale. Most of these definitions consider
WMD as nuclear, biological and chemical weapons (NBC).
2.5.1.3 Chemical Weapons: A chemical attack could be the release of toxic gas caused by
attacking an industrial facility, or releasing a chemical that has been stolen from its legitimate
12
Terrorism – Types, Genesis and Definition
users to inflict heavy damage on the enemy (Archer, 2005). Chemical weapons are different
from conventional weapons or nuclear weapons as the destructive effect of chemical weapons
are not primarily due to any explosive force. According to the Chemical Weapons Convention
signed in 1993, any toxic chemical, regardless of its origin, is considered as a chemical weapon
if it is used for purposes that are prohibited. Toxins such as ricin, botulinum toxin, nerve
agents, lewisite, sarin etc are examples to this. Aum Shinrikyo’s attack with Sarin in a Tokyo
subway is the most notable example of a chemical weapons’ attack in recent times. Very
recently, Al-Qaeda claims to have acquired chemical weapons that can cause serious damage
to its potential enemies.
2.5.1.4 Nuclear weapons: It is argued that the engineering skills and equipment needed to
build the simplest form of nuclear weapon, a “gun” style bomb using highly enriched uranium
(HEU) – are not particularly complex; any well organized group can develop such a weapon.
However, what makes it difficult for terrorist organizations and non-State actors is the non-
availability and the complicated process and the cost involved in enriching uranium. Although,
there are no accounts of terrorist attacks using nuclear weapons, there are clear indications
that from the late 1990s onwards, Al-Qaeda has constantly been trying to acquire it with
the help of different State agencies9.
2.5.1.5 Biological Weapons:
2.5.1.5.1 Bio-terrorism is a relatively new form of terrorist activity that has emerged as a
result of the advancements in biotechnology being accessible to terrorist groups. The American
Center for Disease Control and Prevention, (CDC) defines bio-terrorism attack as “the deliberate
release of viruses, bacteria, or other germs (agents) used to cause illness or death in people,
animals, or plants”. These natural agents are changed to “increase their ability to cause
disease, make them resistant to current medicines, or to increase their ability to be spread
into the environment.” These are spread though air, water or food. Terrorists use biological
agents “because they can be extremely difficult to detect and do not cause illness for several
hours to several days.”
2.5.1.5.2 History of Bio-terrorism: There is historical evidence that some form of bio-terrorism
was resorted to by the ancient civilizations (Greeks, Romans and Persians) by polluting the
drinking water to cause serious harm to their enemies. The bio-terrorism tactics today are,
however, much more sinister and include biological weapons using germs to spread life-
threatening diseases among the targeted groups. The idea and concept of biological weapons
got greater attention in the late 19th and 20th century10.
2.5.1.5.3 During the First World War, Germany is believed to have used biological agents
13
1
9
Archer, 2005 (refer to Aneexure II of this Report)
10
Kietmann and Ruoff 2001 (refer to Aneexure II of this Report)
 Combatting Terrorism
such as Bacillus anthracis and Burkholderia mallei mainly against the livestock and military
personel of their enemies. France and Germany, in the 1930s, introduced disease causing
potato beetle to degrade the food crops of enemies’ civilian population. Many countries engaged
in serious research to develop biological warfare agents and defence mechanisms in the post-
World War I period (Nath, 2004). While countries like Japan, USSR, US and UK were the
frontrunners, several other countries made covert attempts to develop biological weapons.
During the conflicts arising from Cold War in several countries it was alleged that chemical
and biological weapons were widely used. This was reported during the Yemen War (1963-
67), the Vietnam War (1959-1975), the Iran-Iraq War during the 1980s and the Gulf War
of 1990-91. Soviets and the Mujahideen groups are alleged to have employed biological
agents during the Afghan crisis and the Communists were accused of using them in Laos
and Cambodia.
2.5.1.6 Cyber-terrorism
2.5.1.6.1 The term ‘cyber-terrorism’ is of very recent origin in comparison to other forms of
terrorist activities. Although different scholars and agencies have tried to define the term, a
commonly accepted definition is yet to evolve. Dorothy Denning’s testimony before the Special
Oversight Panel on Terrorism has been a major reference point on the subject. In her words,
cyber-terrorism is the convergence of terrorism and cyberspace. It is generally understood to
mean unlawful attacks and threats of attacks against computers, networks, and the information
stored therein when done to intimidate or coerce a government or its people in furtherance of
political or social objectives.
2.5.1.6.2 According to the Federal Bureau of Investigation (FBI), cyber-terrorism is a criminal
act perpetrated by the use of computers and telecommunications capabilities, resulting in
violence, destruction and/or disruption of services to create fear by causing confusion and
uncertainty within a given population, with the goal of influencing governments or people
to conform to a particular political, social, or ideological agenda.
2.5.1.6.3 Rod Stark defines cyber-terrorism as ‘the purposeful or threatened use of politically,
socially, economically or religiously motivated cyber warfare or cyber-targeted violence,
conducted by a non-state or state-sponsored group for the purposes of creating fear, anxiety,
and panic in the target population, and the disruption of military and civilian assets.’ Thus,
cyber-terrorism is the most advanced means of terrorist strategy developed with the
advancement in information and communication technologies that enables terrorists to carry
out their operations with minimum physical threat to themselves.
2.5.1.6.4 Peter Flemming and Michael Stohi identify two components of cyber-terrorism11:
14
11
Source: Refer to Annexure II of this Report.
Terrorism – Types, Genesis and Definition
• Computer technology as a facilitator of terrorism: It is used for political propaganda,
terrorist recruitment and financing, intra and inter-group communication and
coordination, intelligence gathering etc. This enables the terrorist groups to maintain
anonymity in routine activities and tactical operations, and also carry out their
operations in a cost-effective manner.
• Computer technology as a specific component of terrorist weapons or targets: This includes
computer technology based attacks or threats on public utilities and transportation,
commercial institutions and transnational corporations, individuals, political or
ethnic groups, security forces, nation-states or for that matter any ‘perceived enemy’.
2.5.1.6.5 The US Army Training and Doctrine Command, DCSINT Handbook 1.02, Cyber-
Operations and Cyber-Terrorism points out the outcome of cyber attacks in four categories:
• Loss of Integrity- unauthorized changes made to the data or IT system can result in
inaccuracy, fraud or erroneous decisions that bring the integrity of the system under
suspicion.
• Loss of Availability- An attack on a mission-critical IT system makes it unavailable
to the end users.
• Loss of Confidentiality- The consequences of unauthorized disclosure of information
ranges from loss of public confidence to national security threats.
• Physical Destruction- Ability to create actual physical harm or destruction through
the use of IT systems.
2.5.1.6.6 Incidents of Cyber Attacks: In 1998, Sri Lankan embassies were swamped with e-mail
bombs by ethnic Tamil militants. This is believed to be the first cyber-terror attack in the
world. Prichard and MacDonald list out a number of recent cyberterrorism incidents. During
the Kosovo conflict in 1999, a number of websites run by NATO were subjected to different
types of cyber attacks. It is also believed that Russian, Chinese and Serbian hackers tried to
deface the NATO and especially US websites during the conflict. In October 2000, some
Israeli youngsters launched DoS (Denial of Service) attacks against the computers maintained
by the terrorist groups in Palestine, and this was reciprocated by attacks on websites belonging
to the Israeli Parliament, Defence Forces, the Foreign Ministry and the Bank of Israel. In
2001, Chinese and American groups engaged in a series of cyber attacks against each other.
Both China and America accused each other of sanctioning these attacks which led to a
series of diplomatic rows. The reported cyber attacks emanating from China are nowadays
posing a major threat.
15
 Combatting Terrorism
such as Bacillus anthracis and Burkholderia mallei mainly against the livestock and military
personel of their enemies. France and Germany, in the 1930s, introduced disease causing
potato beetle to degrade the food crops of enemies’ civilian population. Many countries engaged
in serious research to develop biological warfare agents and defence mechanisms in the post-
World War I period (Nath, 2004). While countries like Japan, USSR, US and UK were the
frontrunners, several other countries made covert attempts to develop biological weapons.
During the conflicts arising from Cold War in several countries it was alleged that chemical
and biological weapons were widely used. This was reported during the Yemen War (1963-
67), the Vietnam War (1959-1975), the Iran-Iraq War during the 1980s and the Gulf War
of 1990-91. Soviets and the Mujahideen groups are alleged to have employed biological
agents during the Afghan crisis and the Communists were accused of using them in Laos
and Cambodia.
2.5.1.6 Cyber-terrorism
2.5.1.6.1 The term ‘cyber-terrorism’ is of very recent origin in comparison to other forms of
terrorist activities. Although different scholars and agencies have tried to define the term, a
commonly accepted definition is yet to evolve. Dorothy Denning’s testimony before the Special
Oversight Panel on Terrorism has been a major reference point on the subject. In her words,
cyber-terrorism is the convergence of terrorism and cyberspace. It is generally understood to
mean unlawful attacks and threats of attacks against computers, networks, and the information
stored therein when done to intimidate or coerce a government or its people in furtherance of
political or social objectives.
2.5.1.6.2 According to the Federal Bureau of Investigation (FBI), cyber-terrorism is a criminal
act perpetrated by the use of computers and telecommunications capabilities, resulting in
violence, destruction and/or disruption of services to create fear by causing confusion and
uncertainty within a given population, with the goal of influencing governments or people
to conform to a particular political, social, or ideological agenda.
2.5.1.6.3 Rod Stark defines cyber-terrorism as ‘the purposeful or threatened use of politically,
socially, economically or religiously motivated cyber warfare or cyber-targeted violence,
conducted by a non-state or state-sponsored group for the purposes of creating fear, anxiety,
and panic in the target population, and the disruption of military and civilian assets.’ Thus,
cyber-terrorism is the most advanced means of terrorist strategy developed with the
advancement in information and communication technologies that enables terrorists to carry
out their operations with minimum physical threat to themselves.
2.5.1.6.4 Peter Flemming and Michael Stohi identify two components of cyber-terrorism11:
14
11
Source: Refer to Annexure II of this Report.
Terrorism – Types, Genesis and Definition
• Computer technology as a facilitator of terrorism: It is used for political propaganda,
terrorist recruitment and financing, intra and inter-group communication and
coordination, intelligence gathering etc. This enables the terrorist groups to maintain
anonymity in routine activities and tactical operations, and also carry out their
operations in a cost-effective manner.
• Computer technology as a specific component of terrorist weapons or targets: This includes
computer technology based attacks or threats on public utilities and transportation,
commercial institutions and transnational corporations, individuals, political or
ethnic groups, security forces, nation-states or for that matter any ‘perceived enemy’.
2.5.1.6.5 The US Army Training and Doctrine Command, DCSINT Handbook 1.02, Cyber-
Operations and Cyber-Terrorism points out the outcome of cyber attacks in four categories:
• Loss of Integrity- unauthorized changes made to the data or IT system can result in
inaccuracy, fraud or erroneous decisions that bring the integrity of the system under
suspicion.
• Loss of Availability- An attack on a mission-critical IT system makes it unavailable
to the end users.
• Loss of Confidentiality- The consequences of unauthorized disclosure of information
ranges from loss of public confidence to national security threats.
• Physical Destruction- Ability to create actual physical harm or destruction through
the use of IT systems.
2.5.1.6.6 Incidents of Cyber Attacks: In 1998, Sri Lankan embassies were swamped with e-mail
bombs by ethnic Tamil militants. This is believed to be the first cyber-terror attack in the
world. Prichard and MacDonald list out a number of recent cyberterrorism incidents. During
the Kosovo conflict in 1999, a number of websites run by NATO were subjected to different
types of cyber attacks. It is also believed that Russian, Chinese and Serbian hackers tried to
deface the NATO and especially US websites during the conflict. In October 2000, some
Israeli youngsters launched DoS (Denial of Service) attacks against the computers maintained
by the terrorist groups in Palestine, and this was reciprocated by attacks on websites belonging
to the Israeli Parliament, Defence Forces, the Foreign Ministry and the Bank of Israel. In
2001, Chinese and American groups engaged in a series of cyber attacks against each other.
Both China and America accused each other of sanctioning these attacks which led to a
series of diplomatic rows. The reported cyber attacks emanating from China are nowadays
posing a major threat.
15
 Combatting Terrorism Terrorism – Types, Genesis and Definition

2.5.1.7 Suicide Terrorism 2.5.1.7.5 In our neighbourhood, the LTTE has consistently been able to find large numbers of volunteers
from amongst Sri Lankan Tamils to carry out suicide missions. Among the concepts that have been
2.5.1.7.1 The most ominous aspect of the emerging terrorist tactics is suicide terrorism. The popularized and used by the LTTE are stories from Silappadikaram, a stirring tale of the woman warrior
first manifestation of this tactic in recent times took place when US Marine barracks in Kannagi, a tale, which as Prof. Basham says, “has a grim force and splendour un-paralleled elsewhere in
Beirut were attacked by a vehicle-borne suicide bomber in 1984. It was not long before the Indian literature”.12
LTTE started resorting to the same tactic. An LTTE cadre drove a truck filled with explosives
into the Sri Lankan Army camp at Nelliady in Jaffna on July 5, 1987 marking the beginning
of LTTE’s suicide bombing campaigns. Thereafter, the Deputy Defence Minister of Sri Lanka
Ranjan Wijeratne was assassinated in 1990 by LTTE terrorists in a suicide mission. The
assassination of Shri Rajiv Gandhi took place on May 21, 1991 which brought into focus the
capability and ruthless brutality of LTTE in suicide terrorism. Since then, there have been
several instances of suicide attacks by the LTTE, the most notable of which was the killing of
the Sri Lankan President Premadasa in 1993.

2.5.1.7.2 Jehadi terrorists took to suicide terrorism in the 1990’s. In Kashmir, the first suicide
attack by the Fedayeen was on July, 13 1991 on a Border Security Force Post. The attack on
the J&K Legislative Assembly complex in October 2001 was also a suicide attack in which
the driver of the explosive-laden vehicle which rammed through the gate was killed. Since
then, the Fedayeen had been involved in attacking the Indian Parliament in 2001 nearly
leading to a face-off between India and Pakistan, in storming the Akshardham Temple in
Gujarat in 2002, and in an abortive attempt at Ayodhya in July 2005. There have been
numerous other Fedayeen, attacks within Jammu & Kashmir, mostly on the premises of the
Police and Security Forces.

2.5.1.7.3 It is important to note that the term ‘Fedayeen’ does not exactly mean a suicide
terrorist in the sense that his death is not vital or inevitable for the success of the mission he
undertakes. However, in many of these operations, the Fedayeen have taken on the Armed
Forces against almost impossible odds knowing fully well that they had little chance of
retuning alive. A majority of the Fedayeen who have operated in Jammu & Kashmir have
been Pakistanis several of whom had fought in Afghanistan against the Soviets in the 1980’s.
Many Kashmiris argue that the reason why very few local people volunteer for suicide
attacks is because of the Sufi Islamic traditions of this region which embody peace and
tolerance.

2.5.1.7.4 There have been only three acts of suicide terrorism in the hinterland of India
outside Jammu & Kashmir in recent times. The first two were the Rajiv Gandhi and Beant
Singh assassinations. The third one took place outside the Special Task Force Office in
Hyderabad in 2005.

16 17
21
12
A.L. Basham: ‘The Wonder that was India’
 Combatting Terrorism Terrorism – Types, Genesis and Definition

2.5.1.7 Suicide Terrorism 2.5.1.7.5 In our neighbourhood, the LTTE has consistently been able to find large numbers of volunteers
from amongst Sri Lankan Tamils to carry out suicide missions. Among the concepts that have been
2.5.1.7.1 The most ominous aspect of the emerging terrorist tactics is suicide terrorism. The popularized and used by the LTTE are stories from Silappadikaram, a stirring tale of the woman warrior
first manifestation of this tactic in recent times took place when US Marine barracks in Kannagi, a tale, which as Prof. Basham says, “has a grim force and splendour un-paralleled elsewhere in
Beirut were attacked by a vehicle-borne suicide bomber in 1984. It was not long before the Indian literature”.12
LTTE started resorting to the same tactic. An LTTE cadre drove a truck filled with explosives
into the Sri Lankan Army camp at Nelliady in Jaffna on July 5, 1987 marking the beginning
of LTTE’s suicide bombing campaigns. Thereafter, the Deputy Defence Minister of Sri Lanka
Ranjan Wijeratne was assassinated in 1990 by LTTE terrorists in a suicide mission. The
assassination of Shri Rajiv Gandhi took place on May 21, 1991 which brought into focus the
capability and ruthless brutality of LTTE in suicide terrorism. Since then, there have been
several instances of suicide attacks by the LTTE, the most notable of which was the killing of
the Sri Lankan President Premadasa in 1993.

2.5.1.7.2 Jehadi terrorists took to suicide terrorism in the 1990’s. In Kashmir, the first suicide
attack by the Fedayeen was on July, 13 1991 on a Border Security Force Post. The attack on
the J&K Legislative Assembly complex in October 2001 was also a suicide attack in which
the driver of the explosive-laden vehicle which rammed through the gate was killed. Since
then, the Fedayeen had been involved in attacking the Indian Parliament in 2001 nearly
leading to a face-off between India and Pakistan, in storming the Akshardham Temple in
Gujarat in 2002, and in an abortive attempt at Ayodhya in July 2005. There have been
numerous other Fedayeen, attacks within Jammu & Kashmir, mostly on the premises of the
Police and Security Forces.

2.5.1.7.3 It is important to note that the term ‘Fedayeen’ does not exactly mean a suicide
terrorist in the sense that his death is not vital or inevitable for the success of the mission he
undertakes. However, in many of these operations, the Fedayeen have taken on the Armed
Forces against almost impossible odds knowing fully well that they had little chance of
retuning alive. A majority of the Fedayeen who have operated in Jammu & Kashmir have
been Pakistanis several of whom had fought in Afghanistan against the Soviets in the 1980’s.
Many Kashmiris argue that the reason why very few local people volunteer for suicide
attacks is because of the Sufi Islamic traditions of this region which embody peace and
tolerance.

2.5.1.7.4 There have been only three acts of suicide terrorism in the hinterland of India
outside Jammu & Kashmir in recent times. The first two were the Rajiv Gandhi and Beant
Singh assassinations. The third one took place outside the Special Task Force Office in
Hyderabad in 2005.

16 17
21
12
A.L. Basham: ‘The Wonder that was India’

3 TERRORISM IN INDIA
3.1 Jammu & Kashmir
3.1.1 The roots of insurgency in Jammu & Kashmir can be traced to the later part of the
1940s when Pakistan attacked India with a view to capture Jammu & Kashmir. Ever since
there has been a section of population which believes in secession from India. These groups
aided and abetted from across the border have often indulged in insurgent activities. Following
the 1971 India-Pakistan war there was a lull in the secessionist activities. However, the
eighties witnessed large scale infiltration across the border and a sudden increase in insurgency.
Innocent persons, were targeted and forced to flee from the State. The decade of the 1990s
saw large scale deployment of security forces in the State. An idea about the extent of violence
can be had from Figure 3.1
3.1.2 The rise of Islamist fundamentalism and emergence of Al-Qaeda has added another
dimension to the insurgency in Jammu & Kashmir. From India’s point of view, the real threat
vis-à-vis Islamist fundamentalism emanates not so much from the Al-Qaeda and the Taliban
per se but from their regional affiliates who, though sharing the former’s philosophy and
18
Terrorism in India
outlook, have by now developed separate networks capable of undertaking jihadi onslaughts
on their own. Thus, the Pakistan-based terrorist organisation called Laskar-e-Tayyaba (LeT)
is known to have developed cells not only in India but also in about 18 countries, including
the USA, the UK, France, Singapore and Australia.
3.1.3 Other affiliates of Al-Qaeda which continue to pose a serious threat to peace and
security in India are the Jaish-e-Mohammed (JeM), HUM, HUJI and Al-Badr. It may be
mentioned that JeM was formed by Masood Azhar, a former senior leader of Harkat-ul-
Ansar who was released and handed over by India to the Talibans at Kandahar (Afghanistan)
in exchange of the IC-814 hijacking hostages. JeM’s declared objective is to unite Kashmir
with Pakistan. JeM cadres are known to have been involved in several suicide attacks in
Jammu & Kashmir including the one on Jammu & Kashmir Legislative Assembly in October
2001, the attack on Indian Parliament in December 2001 besides a few other terrorist attacks
inside India during 2005-06. Despite the fact that this organisation was believed to have
been implicated in two attacks on President Musharraf and was banned in Pakistan in
2002, it continues to operate fairly openly in parts of Pakistan.
3.1.4 The nature of terrorist threat in Jammu & Kashmir has changed in some ways. Suicide
terrorism has made its presence felt in the State just as the Jammu region has also become a
special target for attacks in the last few years. The Annual Report of the Ministry of Home
Affairs for 2006-07 shows that there has been a change in the violence profile after April
2006 with soft targets like minority groups, tourists and migrant labourers - all innocent
citizens - being targeted by the militants, with grenade attacks having increased by 49%
over the previous year. The threat from the terrorist groups may also be said to have increased
with the formation of United Jehad Council, an umbrella organisation of 14 militant groups
led by the Hizbul Mujahideen along with the Lashkar-e-Tayyaba and the Jaish-e-Mohammed
acquiring the most modern and sophisticated weapons and known support from international
terrorist groups.
3.1.5 Government of India has been endeavouring to tackle the problems of the troubled
State through a multi-pronged strategy with a holistic approach calculated to address areas
of concern on the political, security, developmental and administrative fronts. On the political
aspect, primacy has been given to political dialogue with emphasis on political-democratic
processes and emphasis on the rule of law. In specific terms, the following steps may be
mentioned13 :
(a) emphasis on comprehensive confidence building measures not only within Jammu
& Kashmir but also with Pakistan;
19
13
Source: Annual Report, 2006-07; Ministry of Home Affairs; http://www.mha.nic.in/pdfs/ar0607-Eng.pdf

3 TERRORISM IN INDIA
3.1 Jammu & Kashmir
3.1.1 The roots of insurgency in Jammu & Kashmir can be traced to the later part of the
1940s when Pakistan attacked India with a view to capture Jammu & Kashmir. Ever since
there has been a section of population which believes in secession from India. These groups
aided and abetted from across the border have often indulged in insurgent activities. Following
the 1971 India-Pakistan war there was a lull in the secessionist activities. However, the
eighties witnessed large scale infiltration across the border and a sudden increase in insurgency.
Innocent persons, were targeted and forced to flee from the State. The decade of the 1990s
saw large scale deployment of security forces in the State. An idea about the extent of violence
can be had from Figure 3.1
3.1.2 The rise of Islamist fundamentalism and emergence of Al-Qaeda has added another
dimension to the insurgency in Jammu & Kashmir. From India’s point of view, the real threat
vis-à-vis Islamist fundamentalism emanates not so much from the Al-Qaeda and the Taliban
per se but from their regional affiliates who, though sharing the former’s philosophy and
18
Terrorism in India
outlook, have by now developed separate networks capable of undertaking jihadi onslaughts
on their own. Thus, the Pakistan-based terrorist organisation called Laskar-e-Tayyaba (LeT)
is known to have developed cells not only in India but also in about 18 countries, including
the USA, the UK, France, Singapore and Australia.
3.1.3 Other affiliates of Al-Qaeda which continue to pose a serious threat to peace and
security in India are the Jaish-e-Mohammed (JeM), HUM, HUJI and Al-Badr. It may be
mentioned that JeM was formed by Masood Azhar, a former senior leader of Harkat-ul-
Ansar who was released and handed over by India to the Talibans at Kandahar (Afghanistan)
in exchange of the IC-814 hijacking hostages. JeM’s declared objective is to unite Kashmir
with Pakistan. JeM cadres are known to have been involved in several suicide attacks in
Jammu & Kashmir including the one on Jammu & Kashmir Legislative Assembly in October
2001, the attack on Indian Parliament in December 2001 besides a few other terrorist attacks
inside India during 2005-06. Despite the fact that this organisation was believed to have
been implicated in two attacks on President Musharraf and was banned in Pakistan in
2002, it continues to operate fairly openly in parts of Pakistan.
3.1.4 The nature of terrorist threat in Jammu & Kashmir has changed in some ways. Suicide
terrorism has made its presence felt in the State just as the Jammu region has also become a
special target for attacks in the last few years. The Annual Report of the Ministry of Home
Affairs for 2006-07 shows that there has been a change in the violence profile after April
2006 with soft targets like minority groups, tourists and migrant labourers - all innocent
citizens - being targeted by the militants, with grenade attacks having increased by 49%
over the previous year. The threat from the terrorist groups may also be said to have increased
with the formation of United Jehad Council, an umbrella organisation of 14 militant groups
led by the Hizbul Mujahideen along with the Lashkar-e-Tayyaba and the Jaish-e-Mohammed
acquiring the most modern and sophisticated weapons and known support from international
terrorist groups.
3.1.5 Government of India has been endeavouring to tackle the problems of the troubled
State through a multi-pronged strategy with a holistic approach calculated to address areas
of concern on the political, security, developmental and administrative fronts. On the political
aspect, primacy has been given to political dialogue with emphasis on political-democratic
processes and emphasis on the rule of law. In specific terms, the following steps may be
mentioned13 :
(a) emphasis on comprehensive confidence building measures not only within Jammu
& Kashmir but also with Pakistan;
19
13
Source: Annual Report, 2006-07; Ministry of Home Affairs; http://www.mha.nic.in/pdfs/ar0607-Eng.pdf
 Combatting Terrorism Terrorism in India

(b) facilitating people-to-people contact between residents of Jammu & Kashmir 3.1.9 India has been fighting the menace of cross-border terrorism in the State of Jammu &
and those of POK; Kashmir for over 16 years. More than 13,000 civilians and 4,000 men of Security Forces
(SFs) have lost their lives. The security situation in the State has evolved positively since 1989
(c) initiatives taken to reunite separated families from both sides of the border by on account of the sincere efforts of the SFs and institutions of governance and above all, the
opening the Srinagar-Muzaffarabad and Poonch-Rawalakot bus services; people’s yearning for peace and normalcy16. The efforts of the Union Government and the
State Government and especially those of the security forces have helped in controlling the
(d) considerable relaxation in movements across the LOC in the immediate aftermath
militant activities. The successful conduct of general elections as well as elections to local
of the devastating earthquake in the POK region; and
bodies are a positive indicator of the people’s faith in the Indian democracy. Another positive
(e) Government of India initiative in holding periodic dialogues with groups development has been the increasing influx of tourists in the valley.
representing different shades of opinion, including the separatists.
3.2 North Eastern States
3.1.6 Of the internal security related measures, mention may be made of14 -
3.2.1 The States in India’s North East region have a long history of conflict and violence
(a) revitalising the Unified Command mechanism (introduced first during 1997) among the tribal groups within the same State, and also neighbouring States. A major part
under the chairmanship of the State’s Chief Minister and having senior of the geographical area of this region was initially within the ambit of the State of Assam
representatives of the Army, Central Police Organisations stationed in the State but the manifestation of ethno-nationalism quite often expressed through violence, led to the
and senior officers of the State’s civil and police administration; formation of some of the present States through various stages of evolution during the post-
Independence period.
(b) banning nine terrorist organisations reported to be operating in Jammu &
Kashmir under the Unlawful Activities (Prevention) Act, 2004 including JeM, Table 3.1: Security Situation during the Years 2003-07 (North East)
LeT, HM and HuM;
Head 2003 2004 2005 2006 2007
(c) setting up Village Defence Committees and appointment of Special Police Officers Incidents 1332 1234 1332 1366 1489
in selected areas after careful screening; and
Extremists arrested/ 2192 2797 2459 3231 2875
(d) providing for reimbursement of the State’s security related expenditure. killed/surrendered
SFs killed 90 110 70 76 79
3.1.7 On the developmental front, the main initiative has been the Prime Minister’s
Reconstruction Plan for Jammu & Kashmir, as announced in November 2004, with an Civilians killed 494 414 393 309 498
outlay of a substantial amount of Rs.24,000 crores15.
Source: Annual Report 2007-08; Ministry of Home Affairs
3.1.8 On the administrative front, the following steps deserve mention :
3.2.2 Although the founding fathers who framed the Indian Constitution had taken into
(a) relief measures for victims of militancy; account the special nature of the problems in this region and had provided for innovative
models of Autonomous Councils and other measures, the complex pattern of conflicts in
(b) encouraging and facilitating return of Kashmiri migrants; and the North-Eastern States still continues. As a result, there have been serious impediments
to the economic progress as well as other developmental activities in the region much to
(c) special facilities and concessions provided to Central Government employees the detriment of the people living in these areas. The Commission has dealt with the
posted in the Kashmir valley. problems of this region, including aspects of terrorism, in its Report on ‘Capacity Building
for Conflict Resolution’.

20 21
14 16
Source: ibid Annual Report 2006-07, Ministry of Home Affairs; Government of India.
15
1 Crore = 10 million
 Combatting Terrorism Terrorism in India

(b) facilitating people-to-people contact between residents of Jammu & Kashmir 3.1.9 India has been fighting the menace of cross-border terrorism in the State of Jammu &
and those of POK; Kashmir for over 16 years. More than 13,000 civilians and 4,000 men of Security Forces
(SFs) have lost their lives. The security situation in the State has evolved positively since 1989
(c) initiatives taken to reunite separated families from both sides of the border by on account of the sincere efforts of the SFs and institutions of governance and above all, the
opening the Srinagar-Muzaffarabad and Poonch-Rawalakot bus services; people’s yearning for peace and normalcy16. The efforts of the Union Government and the
State Government and especially those of the security forces have helped in controlling the
(d) considerable relaxation in movements across the LOC in the immediate aftermath
militant activities. The successful conduct of general elections as well as elections to local
of the devastating earthquake in the POK region; and
bodies are a positive indicator of the people’s faith in the Indian democracy. Another positive
(e) Government of India initiative in holding periodic dialogues with groups development has been the increasing influx of tourists in the valley.
representing different shades of opinion, including the separatists.
3.2 North Eastern States
3.1.6 Of the internal security related measures, mention may be made of14 -
3.2.1 The States in India’s North East region have a long history of conflict and violence
(a) revitalising the Unified Command mechanism (introduced first during 1997) among the tribal groups within the same State, and also neighbouring States. A major part
under the chairmanship of the State’s Chief Minister and having senior of the geographical area of this region was initially within the ambit of the State of Assam
representatives of the Army, Central Police Organisations stationed in the State but the manifestation of ethno-nationalism quite often expressed through violence, led to the
and senior officers of the State’s civil and police administration; formation of some of the present States through various stages of evolution during the post-
Independence period.
(b) banning nine terrorist organisations reported to be operating in Jammu &
Kashmir under the Unlawful Activities (Prevention) Act, 2004 including JeM, Table 3.1: Security Situation during the Years 2003-07 (North East)
LeT, HM and HuM;
Head 2003 2004 2005 2006 2007
(c) setting up Village Defence Committees and appointment of Special Police Officers Incidents 1332 1234 1332 1366 1489
in selected areas after careful screening; and
Extremists arrested/ 2192 2797 2459 3231 2875
(d) providing for reimbursement of the State’s security related expenditure. killed/surrendered
SFs killed 90 110 70 76 79
3.1.7 On the developmental front, the main initiative has been the Prime Minister’s
Reconstruction Plan for Jammu & Kashmir, as announced in November 2004, with an Civilians killed 494 414 393 309 498
outlay of a substantial amount of Rs.24,000 crores15.
Source: Annual Report 2007-08; Ministry of Home Affairs
3.1.8 On the administrative front, the following steps deserve mention :
3.2.2 Although the founding fathers who framed the Indian Constitution had taken into
(a) relief measures for victims of militancy; account the special nature of the problems in this region and had provided for innovative
models of Autonomous Councils and other measures, the complex pattern of conflicts in
(b) encouraging and facilitating return of Kashmiri migrants; and the North-Eastern States still continues. As a result, there have been serious impediments
to the economic progress as well as other developmental activities in the region much to
(c) special facilities and concessions provided to Central Government employees the detriment of the people living in these areas. The Commission has dealt with the
posted in the Kashmir valley. problems of this region, including aspects of terrorism, in its Report on ‘Capacity Building
for Conflict Resolution’.

20 21
14 16
Source: ibid Annual Report 2006-07, Ministry of Home Affairs; Government of India.
15
1 Crore = 10 million
 Combatting Terrorism
3.2.3 Illegal Immigration in the North East*
3.3 Punjab
3.3.1 The quest for a separate Sikh identity manifested itself, after Partition, in their demand
for a separate State in India. Even after the formation of a separate State of Punjab, some
related issues remained unresolved pertaining inter-alia to their demand for Chandigarh as
the State capital, sharing of river waters etc. The situation was further aggravated when
terrorist elements demanded secession in the form of ‘Khalistan’. While terrorism was quelled,
a determined effort was launched, soon after the elections in December 1984, to find an
enduring basis for the resolution of the conflict which was inextricably enmeshed with violence
in Punjab and its spin-off effects in other parts of the country. The Rajiv Gandhi-Longowal
Accord in July 1985 brought this turbulence to a temporary end. With Sant Longowal’s
assassination a month later and the implementation of the Accord running into rough weather
over the question of Chandigarh as a part of Punjab and the sharing of river waters, there
was a renewal of violence. Finally, the conflict was resolved by the Government following a
policy which was based on four parameters: security action to contain and eliminate terrorism;
sub-terranean contacts with militants to persuade them to give up violence and come to the
negotiating table; over-the-table discussions with dissident elements who were prepared to
eschew violence and accept the basic tenets of the Constitution in exchange for full integration
into the country’s democratic process, and sensitivity to religious, cultural and ethnic sentiments
of the affected population.17 There are isolated embers even now and the problem mainly
emanates from sections living abroad.
3.4 Ideology-oriented Terrorism : Left-Wing Extremism (LWE)
3.4.1 Left-wing extremists in India, as elsewhere, are known for resorting to violence in
pursuance of their ideology of peoples’ revolutionary movement. In West Bengal, this
movement was started in 1967 by an extremists’ break-away faction of the CPM. This
extremist faction had a fairly good following among the tea garden labourers besides the
peasantry of the area. Being convinced that the objective condition was ripe in India, this
faction commenced its so-called agrarian revolution from 3rd March, 1967, the very next day
of the formation of the United Front Government in West Bengal. The initial outburst was
followed by groups occupying vacant lands in parts of Naxalbari, Khoribari and Phansidewa
police station areas of Siliguri sub-division on the plea that such lands were in excess of the
permissible ceiling on land holdings or that these were supposed to have vested
22
*
The contents of this Paragraph have been classified as ‘Confidential’ and hence are not included in this printed version.
17
Manishankar Aiyar, Rajiv Gandhi’s India: A Golden Jubilee Retrospective, UBSPD
Terrorism in India
in the Government which the latter never cared to distribute among landless and marginal
farmers as provided for in the West Bengal Estate Acquisition Act of 1953 and other allied
laws.
3.4.2 Exercising utmost restraint, the local police and administration did not pursue a
grossly punitive and retaliatory path but sought to arrange redressal by the Government
of the long-standing grievances, especially in respect of the hapless and poor tea garden
labourers and landless or marginal farmers. As a result, the extremist faction could not mobilise
these people for further organised militant activities. The police leadership was convinced
that if police operations are properly planned and timed, ‘the fly-swatters would be more
appropriate and effective than sledge-hammers’. This should be an important lesson one can
ill afford to ignore in the handling of the current spate of Naxalite/Maoist militancy in
different parts of India.
3.4.3 The first flush of the Left Extremist movement in the Naxalbari region was effectively
controlled without much bloodshed and within a relatively short span of time. The highlights
of subsequent developments of this movement, known since then as the Naxalite movement
and its later reincarnation as the Maoist movement since 2004, may be briefly summarised
as below:
• May, 1968 : Formation of the All India Co-ordination Committee of Communist
Revolutionaries (AICCCR) to carry forward the militant movement in different
parts of India.
• 22 April, 1969: Formation of a new Marxist-Leninist party to be known as the CPI
(ML), which was formally announced in a rally at Calcutta on 1 May, 1969.
• Overt acts of violence in the name of ‘annihilation of class enemies’ started surfacing
thereafter in parts of different States led by the CPI-ML leaders and their cadres in
West Bengal, Andhra Pradesh, Kerala, Bihar, UP besides Orissa, Madhya Pradesh
and Punjab.
• From about May 1971, inner-party contradictions within the CPI-ML had started
and the authority of the leadership of the extremist faction was being questioned, if
not openly opposed for fear of liquidation by party cadres themselves. When the
leaders of the extremist faction were known to be supportive of Pakistan during the
Bangladesh liberation struggle of 1970-71, the defiance against Charu Majumdar
gathered momentum. This culminated in his arrest from a hideout in Calcutta on
16 July, 1972.
23
 Combatting Terrorism
3.2.3 Illegal Immigration in the North East*
3.3 Punjab
3.3.1 The quest for a separate Sikh identity manifested itself, after Partition, in their demand
for a separate State in India. Even after the formation of a separate State of Punjab, some
related issues remained unresolved pertaining inter-alia to their demand for Chandigarh as
the State capital, sharing of river waters etc. The situation was further aggravated when
terrorist elements demanded secession in the form of ‘Khalistan’. While terrorism was quelled,
a determined effort was launched, soon after the elections in December 1984, to find an
enduring basis for the resolution of the conflict which was inextricably enmeshed with violence
in Punjab and its spin-off effects in other parts of the country. The Rajiv Gandhi-Longowal
Accord in July 1985 brought this turbulence to a temporary end. With Sant Longowal’s
assassination a month later and the implementation of the Accord running into rough weather
over the question of Chandigarh as a part of Punjab and the sharing of river waters, there
was a renewal of violence. Finally, the conflict was resolved by the Government following a
policy which was based on four parameters: security action to contain and eliminate terrorism;
sub-terranean contacts with militants to persuade them to give up violence and come to the
negotiating table; over-the-table discussions with dissident elements who were prepared to
eschew violence and accept the basic tenets of the Constitution in exchange for full integration
into the country’s democratic process, and sensitivity to religious, cultural and ethnic sentiments
of the affected population.17 There are isolated embers even now and the problem mainly
emanates from sections living abroad.
3.4 Ideology-oriented Terrorism : Left-Wing Extremism (LWE)
3.4.1 Left-wing extremists in India, as elsewhere, are known for resorting to violence in
pursuance of their ideology of peoples’ revolutionary movement. In West Bengal, this
movement was started in 1967 by an extremists’ break-away faction of the CPM. This
extremist faction had a fairly good following among the tea garden labourers besides the
peasantry of the area. Being convinced that the objective condition was ripe in India, this
faction commenced its so-called agrarian revolution from 3rd March, 1967, the very next day
of the formation of the United Front Government in West Bengal. The initial outburst was
followed by groups occupying vacant lands in parts of Naxalbari, Khoribari and Phansidewa
police station areas of Siliguri sub-division on the plea that such lands were in excess of the
permissible ceiling on land holdings or that these were supposed to have vested
22
*
The contents of this Paragraph have been classified as ‘Confidential’ and hence are not included in this printed version.
17
Manishankar Aiyar, Rajiv Gandhi’s India: A Golden Jubilee Retrospective, UBSPD
Terrorism in India
in the Government which the latter never cared to distribute among landless and marginal
farmers as provided for in the West Bengal Estate Acquisition Act of 1953 and other allied
laws.
3.4.2 Exercising utmost restraint, the local police and administration did not pursue a
grossly punitive and retaliatory path but sought to arrange redressal by the Government
of the long-standing grievances, especially in respect of the hapless and poor tea garden
labourers and landless or marginal farmers. As a result, the extremist faction could not mobilise
these people for further organised militant activities. The police leadership was convinced
that if police operations are properly planned and timed, ‘the fly-swatters would be more
appropriate and effective than sledge-hammers’. This should be an important lesson one can
ill afford to ignore in the handling of the current spate of Naxalite/Maoist militancy in
different parts of India.
3.4.3 The first flush of the Left Extremist movement in the Naxalbari region was effectively
controlled without much bloodshed and within a relatively short span of time. The highlights
of subsequent developments of this movement, known since then as the Naxalite movement
and its later reincarnation as the Maoist movement since 2004, may be briefly summarised
as below:
• May, 1968 : Formation of the All India Co-ordination Committee of Communist
Revolutionaries (AICCCR) to carry forward the militant movement in different
parts of India.
• 22 April, 1969: Formation of a new Marxist-Leninist party to be known as the CPI
(ML), which was formally announced in a rally at Calcutta on 1 May, 1969.
• Overt acts of violence in the name of ‘annihilation of class enemies’ started surfacing
thereafter in parts of different States led by the CPI-ML leaders and their cadres in
West Bengal, Andhra Pradesh, Kerala, Bihar, UP besides Orissa, Madhya Pradesh
and Punjab.
• From about May 1971, inner-party contradictions within the CPI-ML had started
and the authority of the leadership of the extremist faction was being questioned, if
not openly opposed for fear of liquidation by party cadres themselves. When the
leaders of the extremist faction were known to be supportive of Pakistan during the
Bangladesh liberation struggle of 1970-71, the defiance against Charu Majumdar
gathered momentum. This culminated in his arrest from a hideout in Calcutta on
16 July, 1972.
23
 Combatting Terrorism
3.4.4 Various splinter groups of Naxalites started resurfacing in various parts of India during
the early 1980s. Thus, the Naxalites of Andhra Pradesh regrouped as the CPI-ML (Peoples’
War Group/ PWG); likewise the Bihar Naxalites rechristened themselves as the Maoist
Communist Centre (MCC). Of all the newly organised Naxalite groups, the CPI-ML (PWG)
turned out to be the most active not only in Andhra Pradesh but also in Orissa, in the tribal
belt (Bastar-Dandakaranya) of Madhya Pradesh (now mostly in the State of Chhattisgarh)
and Maharashtra, causing considerable violence in these States.
3.4.5 The PWG in Andhra Pradesh succeeded in mobilising a fairly large section of the
rural population in the outlying districts and also in the urban areas of some other districts.
The PWG also succeeded in enlisting the support of a vocal section of the civil society. In
addition, some of its programmes could create a climate of wide public support. Thus, the
leaders openly started holding ‘Praja Courts’ (peoples’ courts) in which complaints against
land-owners, money-lenders and even against Government officials were being entertained
and ‘swift justice’ meted out. Even elected representatives like MLAs and sarpanches were
being given ‘directives’ by such courts, which were generally obeyed because they were scared
of retaliatory actions by the cadres of the PWG. In other words, for quite sometime the
people in these areas of PWG influence could witness the utter lack of good and effective
administration. At the same time, reckless and indiscriminate actions of the PWG squads
(‘dalams’) in the shape of forcible collection of funds from land-owners, businessmen and
others alienated a section of the people who started mounting pressure on the State Government
for firm action against the PWG.
3.4.6 This was followed by strong police actions which led to killings by both police and the
Maoists. This had another consequence which the Maoists had not anticipated. Police
operations created a sense of insecurity among sections of the Maoist cadres which prompted
them to resort to brutal murders and tortures of villagers on the slightest suspicion of being
police informers. This created further alienation among the local villagers when they saw
that those who claimed to be their saviours could be so ruthless and indiscriminate in their
conduct.
3.4.7 Thus, at a later stage, when the State Government commenced large-scale police
operations, spearheaded by the specially-trained police units called Greyhounds, it did not
take long for the latter to score spectacular victories against Maoist bases, obviously with
substantial support from the villages which were earlier considered to be their strong base
areas, especially in the Nallamala forest and its adjoining areas. This forced the Andhra
Maoists to vacate these areas and get dispersed in adjacent pockets in the Dandakaranya
belt of Chhattisgarh and in some of the adjacent districts of Orissa.
24
Terrorism in India
3.4.8 Meanwhile the Maoists developed some expertise in the use of landmines and IEDs
which caused very significant casualties among police and other security personnel operating
in Chhattisgarh. Another significant development in this State has been the creation of
resistance groups from amongst the tribal people known as the Salwa Judum.
3.4.9 The Bihar Naxalites, namely the Maoist Communist Centre/MCC, found that their
greatest adversary was not so much the administration and the police but the armed gangs
(senas) of the landlord class - the Ranbir Sena, the Bhumihar Sena et al. There were quite a
few massacres of the Dalits who formed the backbone of the MCC and this led to a series of
revenge killings by MCC cadres and retaliatory killings by the landlord senas. In other words,
instead of assuming the characteristics of class struggle as propagated by Maoist ideologues,
the skirmishes took the shape of caste warfare. With the creation of Jharkhand with the
tribal majority districts of erstwhile Bihar, the Maoists naturally emerged as a strong ally of
the exploited tribal poor. Some of the tribal leaders who had ‘prospered’ during the past
decades as ministers, MLAs, MPs and also as political leaders or otherwise through dubious
means as perceived by the common people are also becoming targets of Maoist violence.
3.4.10 In West Bengal, the Naxalites seem to be repeating some of their tactics of the 1969-
72 period of attacks on their political opponents in addition to the police. Thus they have
started targetting specific CPM party functionaries at local levels where such local leaders
were mobilising support against the Naxalites. Their targets are not confined to the known
Naxalite affected districts of West Midnapore, Purulia and Bankura only. During 2005-08
so far, a number of CPM party functionaries have been attacked and killed in the districts of
Nadia, Burdwan, Birbhum, Murshidabad etc. where the Naxalites were known for their
presence during the 1970s. It shows that they have been regrouping in some of their earlier
areas of influence of the 1969-72 phase. This trend is likely to extend to some other areas
also. It is hoped that the state administration in general and the police and the intelligence
apparatus in particular are alive to this new development and would be in a position to
counter the menace without further delay.
3.4.11 It appears now that, barring a few splinter groups; Naxalites have largely completed
their process of merger and consolidation with the formation of the CPI (Maoist) on 21
September 2004. This was followed by their increasing militarisation and simultaneous
acquisition of sophisticated firearms and ammunitions. Their arsenal now boasts of self-
loading rifles (SLRs), AK series of rifles and INSAS rifles. It is believed that currently the
Maoists have also gained access to the technology of fabricating rockets and rocket
launchers.
25
 Combatting Terrorism
3.4.4 Various splinter groups of Naxalites started resurfacing in various parts of India during
the early 1980s. Thus, the Naxalites of Andhra Pradesh regrouped as the CPI-ML (Peoples’
War Group/ PWG); likewise the Bihar Naxalites rechristened themselves as the Maoist
Communist Centre (MCC). Of all the newly organised Naxalite groups, the CPI-ML (PWG)
turned out to be the most active not only in Andhra Pradesh but also in Orissa, in the tribal
belt (Bastar-Dandakaranya) of Madhya Pradesh (now mostly in the State of Chhattisgarh)
and Maharashtra, causing considerable violence in these States.
3.4.5 The PWG in Andhra Pradesh succeeded in mobilising a fairly large section of the
rural population in the outlying districts and also in the urban areas of some other districts.
The PWG also succeeded in enlisting the support of a vocal section of the civil society. In
addition, some of its programmes could create a climate of wide public support. Thus, the
leaders openly started holding ‘Praja Courts’ (peoples’ courts) in which complaints against
land-owners, money-lenders and even against Government officials were being entertained
and ‘swift justice’ meted out. Even elected representatives like MLAs and sarpanches were
being given ‘directives’ by such courts, which were generally obeyed because they were scared
of retaliatory actions by the cadres of the PWG. In other words, for quite sometime the
people in these areas of PWG influence could witness the utter lack of good and effective
administration. At the same time, reckless and indiscriminate actions of the PWG squads
(‘dalams’) in the shape of forcible collection of funds from land-owners, businessmen and
others alienated a section of the people who started mounting pressure on the State Government
for firm action against the PWG.
3.4.6 This was followed by strong police actions which led to killings by both police and the
Maoists. This had another consequence which the Maoists had not anticipated. Police
operations created a sense of insecurity among sections of the Maoist cadres which prompted
them to resort to brutal murders and tortures of villagers on the slightest suspicion of being
police informers. This created further alienation among the local villagers when they saw
that those who claimed to be their saviours could be so ruthless and indiscriminate in their
conduct.
3.4.7 Thus, at a later stage, when the State Government commenced large-scale police
operations, spearheaded by the specially-trained police units called Greyhounds, it did not
take long for the latter to score spectacular victories against Maoist bases, obviously with
substantial support from the villages which were earlier considered to be their strong base
areas, especially in the Nallamala forest and its adjoining areas. This forced the Andhra
Maoists to vacate these areas and get dispersed in adjacent pockets in the Dandakaranya
belt of Chhattisgarh and in some of the adjacent districts of Orissa.
24
Terrorism in India
3.4.8 Meanwhile the Maoists developed some expertise in the use of landmines and IEDs
which caused very significant casualties among police and other security personnel operating
in Chhattisgarh. Another significant development in this State has been the creation of
resistance groups from amongst the tribal people known as the Salwa Judum.
3.4.9 The Bihar Naxalites, namely the Maoist Communist Centre/MCC, found that their
greatest adversary was not so much the administration and the police but the armed gangs
(senas) of the landlord class - the Ranbir Sena, the Bhumihar Sena et al. There were quite a
few massacres of the Dalits who formed the backbone of the MCC and this led to a series of
revenge killings by MCC cadres and retaliatory killings by the landlord senas. In other words,
instead of assuming the characteristics of class struggle as propagated by Maoist ideologues,
the skirmishes took the shape of caste warfare. With the creation of Jharkhand with the
tribal majority districts of erstwhile Bihar, the Maoists naturally emerged as a strong ally of
the exploited tribal poor. Some of the tribal leaders who had ‘prospered’ during the past
decades as ministers, MLAs, MPs and also as political leaders or otherwise through dubious
means as perceived by the common people are also becoming targets of Maoist violence.
3.4.10 In West Bengal, the Naxalites seem to be repeating some of their tactics of the 1969-
72 period of attacks on their political opponents in addition to the police. Thus they have
started targetting specific CPM party functionaries at local levels where such local leaders
were mobilising support against the Naxalites. Their targets are not confined to the known
Naxalite affected districts of West Midnapore, Purulia and Bankura only. During 2005-08
so far, a number of CPM party functionaries have been attacked and killed in the districts of
Nadia, Burdwan, Birbhum, Murshidabad etc. where the Naxalites were known for their
presence during the 1970s. It shows that they have been regrouping in some of their earlier
areas of influence of the 1969-72 phase. This trend is likely to extend to some other areas
also. It is hoped that the state administration in general and the police and the intelligence
apparatus in particular are alive to this new development and would be in a position to
counter the menace without further delay.
3.4.11 It appears now that, barring a few splinter groups; Naxalites have largely completed
their process of merger and consolidation with the formation of the CPI (Maoist) on 21
September 2004. This was followed by their increasing militarisation and simultaneous
acquisition of sophisticated firearms and ammunitions. Their arsenal now boasts of self-
loading rifles (SLRs), AK series of rifles and INSAS rifles. It is believed that currently the
Maoists have also gained access to the technology of fabricating rockets and rocket
launchers.
25
 Combatting Terrorism
3.4.12 The threat from the Maoists has increased on account of their developing expertise in
fabricating and detonating Improvised Explosive Devices (IEDs). Unlike in J&K where
landmines are detonated with remote-controlled device, the Naxalites so far have been using
wire-controlled detonations which cannot be neutralised electronically. The lethality of the
Nxalites’ attack on the security forces and the resultant enormity of the fatalities were
demonstrated in the 3 September 2005 attack on a Mine-protected Vehicle in Dantewada
district of Chhattisgarh, killing 24 policemen (CRPF). On 5 January 2005, the police chief
of Munger district (Bihar) KC Surendra Babu was killed in an IED attack. The police chief
of Prakasam district (Andhra Pradesh) survived an IED attack in April 2005. The former
Chief Minister of Andhra Pradesh (Chandrababu Naidu) had a providential escape from an
IED attack while he was on his way to Tirupati. Likewise, another former Chief Minister of
Andhra Pradesh (Janardhan Reddy) also narrowly escaped from an IED attack on 7 September
2007. All these incidents show that the IEDs have come to be used by the Naxalites for well-
planned attacks on even high-security personalities apart from other targets like police stations
and police vehicles. On a rough estimate, the Naxalites have so far been causing nearly 100
landmine explosions every year with considerable loss of lives of security personnel of state
and central police, quite a disturbing phenomenon.
3.4.13 A further heightening of the Naxalites’ militarisation phase was witnessed in the
following incidents, among others:
• On 6 February 2004, a few hundred Naxalites laid seige to the district headquarters
town of Koraput (Orissa), brought it to a complete halt for a few hours, attacked
the district headquarters complex, made an abortive attempt to storm the jail, but
successfully raided the district police armoury, looting all the 500 weapons and
several thosand rounds of ammunition.
• On 13th November, 2005, there was a massive, well organized and audacious
Naxalite onslaughts on a number of government buildings in Jehanabad (Bihar)
known as the ‘Jehanabad (Bihar) Raid’ or ‘Operation Jail Break’. During these
raids, lasting for several hours at night, the extremists conducted highly synchronised
attacks on the district jail, district court, police lines, police quarters, district armoury
and police stations - all of which went unchallenged. The miscreants looted several
hundred rifles and a huge quantity of ammunitions. The focal point of the raid
was, however, the district jail from which they could take out not only their top
leader Ajay Kanu but also set free 341 other prisoners, including many of their
cadres. The rebels also abducted a number of their class enemies belonging to the
26
Terrorism in India
Ranvir Sena, at least nine of whom were later executed. It is reported that nearly
1000 persons were mobilised for this spectacular operation, the hard core being
armed party cadres and aided by a large number of, what they call, the ‘peoples’
militia’.
• 11 November 2006: Armed Naxalites and members of their peoples’ militia
numbering a few hundred raided the Home Guards Training Centre in Giridih
(Jharkhand), looted 185 rifles and 25,000 rounds of ammunition.
• 15 March 2007: 55 policemen were killed in Rani Bodli (Chhattisgarh)
• 7 July 2007: 24 policemen were slaughtered in the forests of Dantewada district
(Chhattisgarh).
• 16 December 2007: A well-planned jail break was organised by the Maoist inmates
who were lodged in the district jail of Dantewada (Chhattisgarh) in which almost
all the prisoners were set free, including many of their party cadres. This operation
too went unchallenged in spite of the fact that Dantewada district had been known
to be the most Naxalite affected in Chhattisgarh.
All the above onslaughts, in addition to several others in some States, bring to the fore the
urgent need for considerable capacity-building among the police and other security forces
(State and Central) in the areas of training, leadership planning of counter-terror operations
as a part of a comprehensive policy, including reform and development.
3.5 Terrorism Based on Religious Fundamentalism
3.5.1 There have been several terrorist incidents in India which were motivated by religious
fundamentalism. Some of these activities overlap with political ambitions – like separatist
elements in Jammu & Kashmir. Some of these incidents have been aided and abetted by
external forces inimical to India. The ISI launched an initiative in 1991, even before the
Babri Masjid demolition to forge an alliance between Khalistani terrorism that prevailed in
Punjab and the terrorist groups in Jammu & Kashmir. However, the initiative did not yield
results because the key figures were arrested soon after their arrival in India. Thereafter, in
January, 1994, Mohammed Masood Azhar Alvi arrived in India with the task of working
out the reconciliation of the cadre of Harkat Mujahiddin and Harkat-ul Jehad Islami whose
parent organizations had merged to form the Harkat-ul-Ansar. His organisation’s main
objective was to liberate Kashmir from Indian rule and to establish Islamic rule in Kashmir.
He also interacted extensively with the leading figures of the Deoband Ulema.
27
 Combatting Terrorism
3.4.12 The threat from the Maoists has increased on account of their developing expertise in
fabricating and detonating Improvised Explosive Devices (IEDs). Unlike in J&K where
landmines are detonated with remote-controlled device, the Naxalites so far have been using
wire-controlled detonations which cannot be neutralised electronically. The lethality of the
Nxalites’ attack on the security forces and the resultant enormity of the fatalities were
demonstrated in the 3 September 2005 attack on a Mine-protected Vehicle in Dantewada
district of Chhattisgarh, killing 24 policemen (CRPF). On 5 January 2005, the police chief
of Munger district (Bihar) KC Surendra Babu was killed in an IED attack. The police chief
of Prakasam district (Andhra Pradesh) survived an IED attack in April 2005. The former
Chief Minister of Andhra Pradesh (Chandrababu Naidu) had a providential escape from an
IED attack while he was on his way to Tirupati. Likewise, another former Chief Minister of
Andhra Pradesh (Janardhan Reddy) also narrowly escaped from an IED attack on 7 September
2007. All these incidents show that the IEDs have come to be used by the Naxalites for well-
planned attacks on even high-security personalities apart from other targets like police stations
and police vehicles. On a rough estimate, the Naxalites have so far been causing nearly 100
landmine explosions every year with considerable loss of lives of security personnel of state
and central police, quite a disturbing phenomenon.
3.4.13 A further heightening of the Naxalites’ militarisation phase was witnessed in the
following incidents, among others:
• On 6 February 2004, a few hundred Naxalites laid seige to the district headquarters
town of Koraput (Orissa), brought it to a complete halt for a few hours, attacked
the district headquarters complex, made an abortive attempt to storm the jail, but
successfully raided the district police armoury, looting all the 500 weapons and
several thosand rounds of ammunition.
• On 13th November, 2005, there was a massive, well organized and audacious
Naxalite onslaughts on a number of government buildings in Jehanabad (Bihar)
known as the ‘Jehanabad (Bihar) Raid’ or ‘Operation Jail Break’. During these
raids, lasting for several hours at night, the extremists conducted highly synchronised
attacks on the district jail, district court, police lines, police quarters, district armoury
and police stations - all of which went unchallenged. The miscreants looted several
hundred rifles and a huge quantity of ammunitions. The focal point of the raid
was, however, the district jail from which they could take out not only their top
leader Ajay Kanu but also set free 341 other prisoners, including many of their
cadres. The rebels also abducted a number of their class enemies belonging to the
26
Terrorism in India
Ranvir Sena, at least nine of whom were later executed. It is reported that nearly
1000 persons were mobilised for this spectacular operation, the hard core being
armed party cadres and aided by a large number of, what they call, the ‘peoples’
militia’.
• 11 November 2006: Armed Naxalites and members of their peoples’ militia
numbering a few hundred raided the Home Guards Training Centre in Giridih
(Jharkhand), looted 185 rifles and 25,000 rounds of ammunition.
• 15 March 2007: 55 policemen were killed in Rani Bodli (Chhattisgarh)
• 7 July 2007: 24 policemen were slaughtered in the forests of Dantewada district
(Chhattisgarh).
• 16 December 2007: A well-planned jail break was organised by the Maoist inmates
who were lodged in the district jail of Dantewada (Chhattisgarh) in which almost
all the prisoners were set free, including many of their party cadres. This operation
too went unchallenged in spite of the fact that Dantewada district had been known
to be the most Naxalite affected in Chhattisgarh.
All the above onslaughts, in addition to several others in some States, bring to the fore the
urgent need for considerable capacity-building among the police and other security forces
(State and Central) in the areas of training, leadership planning of counter-terror operations
as a part of a comprehensive policy, including reform and development.
3.5 Terrorism Based on Religious Fundamentalism
3.5.1 There have been several terrorist incidents in India which were motivated by religious
fundamentalism. Some of these activities overlap with political ambitions – like separatist
elements in Jammu & Kashmir. Some of these incidents have been aided and abetted by
external forces inimical to India. The ISI launched an initiative in 1991, even before the
Babri Masjid demolition to forge an alliance between Khalistani terrorism that prevailed in
Punjab and the terrorist groups in Jammu & Kashmir. However, the initiative did not yield
results because the key figures were arrested soon after their arrival in India. Thereafter, in
January, 1994, Mohammed Masood Azhar Alvi arrived in India with the task of working
out the reconciliation of the cadre of Harkat Mujahiddin and Harkat-ul Jehad Islami whose
parent organizations had merged to form the Harkat-ul-Ansar. His organisation’s main
objective was to liberate Kashmir from Indian rule and to establish Islamic rule in Kashmir.
He also interacted extensively with the leading figures of the Deoband Ulema.
27
 Combatting Terrorism Terrorism in India

3.5.2 The next initiative in Islamist terrorism by the Pakistani Intelligence was the setting
Table 3.4: State-wise Number of Incidents and Casualties during the Period 2003-07 (Naxalism related Violence)

-
-
2

3
6
45

5
369

17
67

25

696
Incidents Casualties Incidents Casualties Incidents Casualties Incidents Casualties Incidents Casualties

157
up of the Jammu & Kashmir Islamic Front. Its task was to work together with the mafia
figures who had executed the Mumbai serial bombing of 1993. JKIF was responsible for the
2007

Lajpat Nagar blasts in New Delhi in 1996. However, the case was quickly detected and the
138

582
135

1565
482
9

8
7
1
1
67

32
94
accused arrested.

3.5.3 In 2001, several Islamic terrorist attacks took place in New Delhi, the most important

-
-
-
-
47

388

17
45

42

678
124
1

9
5
being the attack on the Parliament House in December 2001. The attack on Akshardham
temple and the killing of Haren Pandya, the former Home Minister of Gujarat State, were
the major operations of Islamist terrorists in 2002 and 2003. In July 2005, there was an
2006

-
-
1509
183

6
715

2
44
11
23
107

98

10
310

attack at Ayodhya which the Security Forces succeeded in repulsing. This was followed by
the Sarojini Nagar market blast in November, at New Delhi. The heinous serial bomb blasts
in Mumbai took place in July 2006. A suicide attack (in which only the Bangladeshi suicide

-
-
208

168

14
96

53

677
119

1
3

8
killer died) near the Office of the Commissioner of Police, Hyderabad; an attack on the
Indian Institute of Science in Bangalore in which an eminent scientist was killed and the
2005

- Aurangabad arms seizure case were the other major terrorist incidents of 2006. The latest in

-
1608
535

385

8
2
20

42
10
14
186

94
312

the spate of such terrorist attacks has been the serial bomb blasts in Jaipur on 13th May, 2008
in which a number of innocent lives were lost.
-

-
-
171

566
83
169
4
74

8
26
15

1
15

3.5.4 It is important to take a look at the role played by the Students’ Islamic Movement of
India (SIMI) in the promotion of Islamist extremism in India. Funded generously by various
2004

Source: Annual Report 2007-08, Ministry of Home Affairs.

Islamist charities, but particularly the World Assembly of Muslim Youth with its headquarters
310

-
-
352

13

11
35
15
323

84

1533
379

5
6

in Riyadh, SIMI spread its activities to various States in India. SIMI cadres were linked to the
abduction of five foreign nationals who were rescued from Saharanpur in 1994. (One of the
accused in this case was the British national Syed Mohammed Omar Sheikh, who was later
-
-
-
-
140

74

1
8
15
128

31
117

515

released in exchange for the IC-814 hostages. He is currently in prison in Pakistan for his role
in the killing of the American journalist, Daniel Pearl). SIMI’s then President CAM Basheer,
2003

hailing from Kerala, was the first Indian Muslim known to have gone to Pakistan for arms
577

-
-
256

13

49
13
250

75

12
6
342

1597
4

training. SIMI was banned by the Government of India under the Unlawful Activities
(Prevention) Act, 1967, in September, 2001.

3.6 Emerging Threats

Madhya Pradesh
Andhra Pradesh

3.6.1 While terrorism was largely a local phenomenon until recently, in today’s world terrorist
Uttar Pradesh
Chhattisgarh

West Bengal
Maharashtra

Tamil Nadu

networks have taken advantage of the communications revolution to develop transnational

Karnataka
Jharkhand

Haryana

links, making terrorism a global threat. Thus, Al Quaeda is a global terror network which is
Kerala
Orissa
Bihar

Total
State

a loose federation of terror-cells spread across the world but operating autonomously with
very little operational linkages among them other than adherence to a particular form of

28 29
 Combatting Terrorism Terrorism in India

3.5.2 The next initiative in Islamist terrorism by the Pakistani Intelligence was the setting
Table 3.4: State-wise Number of Incidents and Casualties during the Period 2003-07 (Naxalism related Violence)

-
-
2

3
6
45

5
369

17
67

25

696
Incidents Casualties Incidents Casualties Incidents Casualties Incidents Casualties Incidents Casualties

157
up of the Jammu & Kashmir Islamic Front. Its task was to work together with the mafia
figures who had executed the Mumbai serial bombing of 1993. JKIF was responsible for the
2007

Lajpat Nagar blasts in New Delhi in 1996. However, the case was quickly detected and the
138

582
135

1565
482
9

8
7
1
1
67

32
94
accused arrested.

3.5.3 In 2001, several Islamic terrorist attacks took place in New Delhi, the most important

-
-
-
-
47

388

17
45

42

678
124
1

9
5
being the attack on the Parliament House in December 2001. The attack on Akshardham
temple and the killing of Haren Pandya, the former Home Minister of Gujarat State, were
the major operations of Islamist terrorists in 2002 and 2003. In July 2005, there was an
2006

-
-
1509
183

6
715

2
44
11
23
107

98

10
310

attack at Ayodhya which the Security Forces succeeded in repulsing. This was followed by
the Sarojini Nagar market blast in November, at New Delhi. The heinous serial bomb blasts
in Mumbai took place in July 2006. A suicide attack (in which only the Bangladeshi suicide

-
-
208

168

14
96

53

677
119

1
3

8
killer died) near the Office of the Commissioner of Police, Hyderabad; an attack on the
Indian Institute of Science in Bangalore in which an eminent scientist was killed and the
2005

- Aurangabad arms seizure case were the other major terrorist incidents of 2006. The latest in

-
1608
535

385

8
2
20

42
10
14
186

94
312

the spate of such terrorist attacks has been the serial bomb blasts in Jaipur on 13th May, 2008
in which a number of innocent lives were lost.
-

-
-
171

566
83
169
4
74

8
26
15

1
15

3.5.4 It is important to take a look at the role played by the Students’ Islamic Movement of
India (SIMI) in the promotion of Islamist extremism in India. Funded generously by various
2004

Source: Annual Report 2007-08, Ministry of Home Affairs.

Islamist charities, but particularly the World Assembly of Muslim Youth with its headquarters
310

-
-
352

13

11
35
15
323

84

1533
379

5
6

in Riyadh, SIMI spread its activities to various States in India. SIMI cadres were linked to the
abduction of five foreign nationals who were rescued from Saharanpur in 1994. (One of the
accused in this case was the British national Syed Mohammed Omar Sheikh, who was later
-
-
-
-
140

74

1
8
15
128

31
117

515

released in exchange for the IC-814 hostages. He is currently in prison in Pakistan for his role
in the killing of the American journalist, Daniel Pearl). SIMI’s then President CAM Basheer,
2003

hailing from Kerala, was the first Indian Muslim known to have gone to Pakistan for arms
577

-
-
256

13

49
13
250

75

12
6
342

1597
4

training. SIMI was banned by the Government of India under the Unlawful Activities
(Prevention) Act, 1967, in September, 2001.

3.6 Emerging Threats

Madhya Pradesh
Andhra Pradesh

3.6.1 While terrorism was largely a local phenomenon until recently, in today’s world terrorist
Uttar Pradesh
Chhattisgarh

West Bengal
Maharashtra

Tamil Nadu

networks have taken advantage of the communications revolution to develop transnational

Karnataka
Jharkhand

Haryana

links, making terrorism a global threat. Thus, Al Quaeda is a global terror network which is
Kerala
Orissa
Bihar

Total
State

a loose federation of terror-cells spread across the world but operating autonomously with
very little operational linkages among them other than adherence to a particular form of

28 29
 Combatting Terrorism
extremist ideology. Another feature of the spread of terrorism is the ability of many terrorist
outfits to cooperate with each other and build operational links in the form of supply of arms,
logistical and even operational support without necessarily sharing ideological bonds. Such
networks are also able to obtain support from organized crime outfits to further their
destructive objective.
3.6.2 The impact of modern technology, particularly communication technology combined
with increasing globalization, rapidly increasing trade in goods and services as well as faster
movement of people across borders means that terrorism in the 21st century has acquired
newer and deadlier dimensions. The accessibility to material and technology that have
much greater destructive potential compared to the past also magnifies the nature of the
threat posed by terrorism. The existence of a large migrant population and porous borders in
an increasingly multi-cultural world means that sleeper cells spawned through propagation
of terrorist ideology, often by using the internet, can become the fifth column threatening the
national fabric of democratic countries. Integration of national economies, banking and
financial systems coupled with faster movement of money across national borders also make
it easier to fund terrorist activities around the globe.
3.7 Strategy to Counter Terrorism
3.7.1 A Multi-pronged Approach
3.7.1.1 A strategy for fighting terror in India has to be evolved in the overall context of a
national security strategy. National security, in its broadest sense, means security of life and
property of every citizen in the country, as well as the common wealth of the nation, which
belongs to all. The objective of the national security strategy has to be the creation and
maintenance of a security environment which would enable the nation to provide opportunities
to all individuals to develop to their fullest potential. Much of the discourse on national
security strategy has been based on the premise that national security can be achieved by
ensuring protection of life and property for all. However, it needs to be clearly understood
that socio-economic development and providing a secure environment have to go hand-in-
hand as one cannot survive without the other.
3.7.1.2 Our national security strategy needs to be built round the concept that nothing must
impede our drive towards the goal of eradicating poverty and raising everyone in the country
above the poverty line. Any threat which could slow down this process has to be considered
a threat to national security. Among other causes, such threats could emanate from war,
terrorism, organized crime, shortage of energy, shortage of water and food, internal conflict
which may be armed or not or from natural or man-made disasters.
30
Terrorism in India
3.7.1.3 To tackle the menace of terrorism, a Box 3.1: Balancing Counter-Terrorism Efforts
multi-pronged approach is needed. In this and Human Rights
context, socio-economic development is a As members of the legal fraternity the questions that
beg to be addressed by us revolve around the conflict,
priority so that vulnerable sections of society consequential to counter-terrorism efforts, between
do not fall prey to the propaganda of terrorists human rights and the concerns for defence of the State
of which we are part. The conflict stems from the
promising them wealth and equity; and the necessity felt for entrusting the law-enforcement
administration, particularly the service agencies with extraordinary powers to meet what is
delivery mechanisms need to be responsive genuinely perceived as an extraordinary situation. The
irony is that the first and foremost impact of such
to the legitimate and long standing measures is felt by law-abiding citizens on account of
grievances of people so that these are redressed inroads they make into individual liberties. Civilized
people do not expect their governments to enact laws
promptly and cannot be exploited by terrorist that turn into mere “scarecrow” for the “birds of prey”
groups. Strong measures are required to deal to use as their “perch”, as Shakespeare would put it. In
this scenario, the role and attitude of the judicial
with criminal elements but with respect for apparatus assumes great importance, in which context
human rights. To ensure this, the law we have certain responsibilities.
enforcement agencies have to be supported Former Chief Justice of India H’bl Mr. Justice Mr. Y K
with an appropriate legal framework, Sabharwal; http://www.supremecourtofindia.nic.in/
new_links/Terrorism%20paper.pdf.
adequate training infrastructure, equipment
and intelligence.
3.7.2 Dealing with the menace of terrorism would require a comprehensive strategy in which
different stakeholders – the Government, political parties, security agencies, civil society and
media – would have an important role to play. This strategy should amalgamate political,
social, economic, administrative, police and other measures. The necessary elements of such
a strategy are listed below:
Political consensus: Political parties must arrive at a national consensus on the need for
the broad contours of such a planned strategy. Based on this national strategy, each of
the States and Union Territories should draw up its respective regional strategies, along
with the required tactical components for the implementation of the strategy. Just as
the Union Government should have intensive interactions with the States and Union
Territories while drawing up the national strategy, the latter would be required to do
their part in close consultation with the nodal ministry of the Government of India
(possibly the Home Ministry). While attempting such a national consensus on an issue
of considerable criticality for the nation’s security, integrity and develop-mental thrusts
for the most backward regions, it deserves to be borne in mind that the people of our
country have a right to expect that our national as well as regional parties will rise
above their sectarian and petty electoral compulsions.
31
 Combatting Terrorism
extremist ideology. Another feature of the spread of terrorism is the ability of many terrorist
outfits to cooperate with each other and build operational links in the form of supply of arms,
logistical and even operational support without necessarily sharing ideological bonds. Such
networks are also able to obtain support from organized crime outfits to further their
destructive objective.
3.6.2 The impact of modern technology, particularly communication technology combined
with increasing globalization, rapidly increasing trade in goods and services as well as faster
movement of people across borders means that terrorism in the 21st century has acquired
newer and deadlier dimensions. The accessibility to material and technology that have
much greater destructive potential compared to the past also magnifies the nature of the
threat posed by terrorism. The existence of a large migrant population and porous borders in
an increasingly multi-cultural world means that sleeper cells spawned through propagation
of terrorist ideology, often by using the internet, can become the fifth column threatening the
national fabric of democratic countries. Integration of national economies, banking and
financial systems coupled with faster movement of money across national borders also make
it easier to fund terrorist activities around the globe.
3.7 Strategy to Counter Terrorism
3.7.1 A Multi-pronged Approach
3.7.1.1 A strategy for fighting terror in India has to be evolved in the overall context of a
national security strategy. National security, in its broadest sense, means security of life and
property of every citizen in the country, as well as the common wealth of the nation, which
belongs to all. The objective of the national security strategy has to be the creation and
maintenance of a security environment which would enable the nation to provide opportunities
to all individuals to develop to their fullest potential. Much of the discourse on national
security strategy has been based on the premise that national security can be achieved by
ensuring protection of life and property for all. However, it needs to be clearly understood
that socio-economic development and providing a secure environment have to go hand-in-
hand as one cannot survive without the other.
3.7.1.2 Our national security strategy needs to be built round the concept that nothing must
impede our drive towards the goal of eradicating poverty and raising everyone in the country
above the poverty line. Any threat which could slow down this process has to be considered
a threat to national security. Among other causes, such threats could emanate from war,
terrorism, organized crime, shortage of energy, shortage of water and food, internal conflict
which may be armed or not or from natural or man-made disasters.
30
Terrorism in India
3.7.1.3 To tackle the menace of terrorism, a Box 3.1: Balancing Counter-Terrorism Efforts
multi-pronged approach is needed. In this and Human Rights
context, socio-economic development is a As members of the legal fraternity the questions that
beg to be addressed by us revolve around the conflict,
priority so that vulnerable sections of society consequential to counter-terrorism efforts, between
do not fall prey to the propaganda of terrorists human rights and the concerns for defence of the State
of which we are part. The conflict stems from the
promising them wealth and equity; and the necessity felt for entrusting the law-enforcement
administration, particularly the service agencies with extraordinary powers to meet what is
delivery mechanisms need to be responsive genuinely perceived as an extraordinary situation. The
irony is that the first and foremost impact of such
to the legitimate and long standing measures is felt by law-abiding citizens on account of
grievances of people so that these are redressed inroads they make into individual liberties. Civilized
people do not expect their governments to enact laws
promptly and cannot be exploited by terrorist that turn into mere “scarecrow” for the “birds of prey”
groups. Strong measures are required to deal to use as their “perch”, as Shakespeare would put it. In
this scenario, the role and attitude of the judicial
with criminal elements but with respect for apparatus assumes great importance, in which context
human rights. To ensure this, the law we have certain responsibilities.
enforcement agencies have to be supported Former Chief Justice of India H’bl Mr. Justice Mr. Y K
with an appropriate legal framework, Sabharwal; http://www.supremecourtofindia.nic.in/
new_links/Terrorism%20paper.pdf.
adequate training infrastructure, equipment
and intelligence.
3.7.2 Dealing with the menace of terrorism would require a comprehensive strategy in which
different stakeholders – the Government, political parties, security agencies, civil society and
media – would have an important role to play. This strategy should amalgamate political,
social, economic, administrative, police and other measures. The necessary elements of such
a strategy are listed below:
Political consensus: Political parties must arrive at a national consensus on the need for
the broad contours of such a planned strategy. Based on this national strategy, each of
the States and Union Territories should draw up its respective regional strategies, along
with the required tactical components for the implementation of the strategy. Just as
the Union Government should have intensive interactions with the States and Union
Territories while drawing up the national strategy, the latter would be required to do
their part in close consultation with the nodal ministry of the Government of India
(possibly the Home Ministry). While attempting such a national consensus on an issue
of considerable criticality for the nation’s security, integrity and develop-mental thrusts
for the most backward regions, it deserves to be borne in mind that the people of our
country have a right to expect that our national as well as regional parties will rise
above their sectarian and petty electoral compulsions.
31
 Combatting Terrorism Terrorism in India

Good governance and socio- Box 3.2: Development and Extremism 3.7.3 If the above basic counter-
Box 3.3: Global Counter-Terrorism Strategy adopted by
economic development: This In many ways, development and internal security are two sides of the measure principles are built into the the
would necessitate high same coin. Each is critically dependent on the other. Often, the lack of national strategy, the end results will UN General Assembly in September, 2006
development and the lack of any prospects for improving one’s lot
priority being given to provide a fertile ground for extremist ideologies to flourish. A large be 18 - Government =legality + The United Nations Global Counter-Terrorism Strategy was
proportion of the recruits to extremist groups come from deprived or adopted by Member States on 8 September 2006. The strategy,
development work and its construction + results in the form of a resolution and an annexed Plan of action, is a
marginalized backgrounds or from regions which somehow seem
actual implementation on disaffected by the vibrant growth in many other parts of the country. I Terrorists/insurgents = illegality + unique global instrument that will enhance national, regional
the ground for which a clean, had mentioned yesterday that I am concerned about the unevenness of destruction + promises. and international efforts to counter terrorism. This is the first
our development process and the various development divides that are time that all Member States have agreed to a common strategic
corruption-free and opening up in the country – the inter-regional divide, the rural-urban approach to fight terrorism, not only sending a clear message
accountable administration divide and the inter-sectoral divide. These divides and disparities lead
3.7.4 The Commission would like to that terrorism is unacceptable in all its forms and manifestation
to disaffection, large-scale migration, and also to discord. I notice that reiterate that any form of extremism but also resolving to take practical steps individually and
at all levels is an imperative collectively to prevent and combat it. Those practical steps
in many cases, internal security problems arise out of the uneven with faith in a dogma ending in
necessity. development and we also need to address this issue if we are to make include a wide array of measures ranging from strengthening
any long-term headway in combating extremist ideologies and extremist violence has the potential of escalating state capacity to counter terrorist threats to better coordinating
elements. United Nations system’s counter-terrorism activities. The
Respect for rule of law: from hate campaign, violent adoption of the strategy fulfils the commitment made by world
Governmental agencies Prime Minister Dr. Manmohan Singh’s speech at the Chief Ministers’ Conference hooliganism and murders of perceived leaders at the 2005 September Summit and builds on many of
on Internal Security; December 20, 2007; New Delhi. Source: http:// the elements proposed by the Secretary-General in his 2 May
must not be allowed to www.pmindia.nic.in/speeches.htm enemies to terrorist activities affecting
2006 report, entitled ‘Uniting against Terrorism:
transgress law even in national security and citizens at large. Recommendations for a Global Counter-Terrorism Strategy’.
dealing with critical situations caused by insurgency or terrorism. If an extraordinary While the Commission in this Report The plan of action includes the following four measures:
situation cannot be dealt with by the existing laws, new laws may be enacted so that has dealt with some forms of extremism i. Measures to address the conditions conducive to the spread
law enforcement agencies are not provoked or tempted to resort to extra-legal or illegal which have degenerated into terrorism, of terrorism, including but not limited to prolonged unresolved
conflicts, dehumanization of victims of terrorism in all its
methods. Police and all other governmental forces must adhere to some basic codes of it needs to be highlighted that it is forms and manifestations, lack of rule of law and violations of
conduct. necessary to deal with all forms of human rights, ethnic, national and religious discrimination,
political exclusion, socio-economic marginalization, and lack
extremism in their early stages through
of good governance.
Countering the subversive activities of terrorists: Government must give priority to defeating measures of conflict resolution
political subversions (e.g. by terrorists and Maoists). The emphasis should be on civil ii. Measures to prevent and combat terrorism, in particular by
accompanied by firm action against denying terrorists access to the means to carry out their attacks,
as opposed to military measures to counter terrorism and insurgency. Psychological hate campaigns and local violence in to their targets and to the desired impact of their attacks.
‘warfare’ or management of information services and the media, in conjunction with order to prevent their escalation. iii. Measures to build States’ capacity to prevent and combat
the intelligence wing of the police, can play an important role in achieving this objective. terrorism and to strengthen the role of the United Nations
system in this regard.

Providing the appropriate legal framework: Terrorism is an extraordinary crime. The ordinary iv. Measures to ensure respect for human rights for all and the
rule of law as the fundamental basis of the fight against
laws of the land may not be adequate to book a terrorist. This may require special laws terrorism, reaffirming that the promotion and protection of
and effective enforcement mechanisms, but with sufficient safeguards to prevent its human rights for all and the rule of law is essential to all
components of the strategy, recognizing that effective counter-
misuse.
terrorism measures and the protection of human rights are
not conflicting goals, but complementary and mutually
Building capacity: The capacity building exercise should extend to the intelligence reinforcing , and stressing the need to promote and protect
gathering machinery, security agencies, civil administration and the society at large. the rights of victims of terrorism.

As was highlighted in the Report on Crisis Management, the strategy should encompass Source: Adapted from http://www.un.org/terrorism/strategy-
counter-terrorism.shtml (extracted on 29.05.2008)
preventive, mitigation, relief and rehabilitative measures.

32 33
18
Defeating Communist Insurgency by Sir Robert Thompson, 1967, based on his comparative analysis of the British handling of the Malaya insurgency(1948-
1960) where he was an officer of the Government of Malaya and the South Vietnamese and American practices in their dealing with the Vietnamese
insurgency where he was the head of the British Advisory Mission (1961-1965).
 Combatting Terrorism Terrorism in India

Good governance and socio- Box 3.2: Development and Extremism 3.7.3 If the above basic counter-
Box 3.3: Global Counter-Terrorism Strategy adopted by
economic development: This In many ways, development and internal security are two sides of the measure principles are built into the the
would necessitate high same coin. Each is critically dependent on the other. Often, the lack of national strategy, the end results will UN General Assembly in September, 2006
development and the lack of any prospects for improving one’s lot
priority being given to provide a fertile ground for extremist ideologies to flourish. A large be 18 - Government =legality + The United Nations Global Counter-Terrorism Strategy was
proportion of the recruits to extremist groups come from deprived or adopted by Member States on 8 September 2006. The strategy,
development work and its construction + results in the form of a resolution and an annexed Plan of action, is a
marginalized backgrounds or from regions which somehow seem
actual implementation on disaffected by the vibrant growth in many other parts of the country. I Terrorists/insurgents = illegality + unique global instrument that will enhance national, regional
the ground for which a clean, had mentioned yesterday that I am concerned about the unevenness of destruction + promises. and international efforts to counter terrorism. This is the first
our development process and the various development divides that are time that all Member States have agreed to a common strategic
corruption-free and opening up in the country – the inter-regional divide, the rural-urban approach to fight terrorism, not only sending a clear message
accountable administration divide and the inter-sectoral divide. These divides and disparities lead
3.7.4 The Commission would like to that terrorism is unacceptable in all its forms and manifestation
to disaffection, large-scale migration, and also to discord. I notice that reiterate that any form of extremism but also resolving to take practical steps individually and
at all levels is an imperative collectively to prevent and combat it. Those practical steps
in many cases, internal security problems arise out of the uneven with faith in a dogma ending in
necessity. development and we also need to address this issue if we are to make include a wide array of measures ranging from strengthening
any long-term headway in combating extremist ideologies and extremist violence has the potential of escalating state capacity to counter terrorist threats to better coordinating
elements. United Nations system’s counter-terrorism activities. The
Respect for rule of law: from hate campaign, violent adoption of the strategy fulfils the commitment made by world
Governmental agencies Prime Minister Dr. Manmohan Singh’s speech at the Chief Ministers’ Conference hooliganism and murders of perceived leaders at the 2005 September Summit and builds on many of
on Internal Security; December 20, 2007; New Delhi. Source: http:// the elements proposed by the Secretary-General in his 2 May
must not be allowed to www.pmindia.nic.in/speeches.htm enemies to terrorist activities affecting
2006 report, entitled ‘Uniting against Terrorism:
transgress law even in national security and citizens at large. Recommendations for a Global Counter-Terrorism Strategy’.
dealing with critical situations caused by insurgency or terrorism. If an extraordinary While the Commission in this Report The plan of action includes the following four measures:
situation cannot be dealt with by the existing laws, new laws may be enacted so that has dealt with some forms of extremism i. Measures to address the conditions conducive to the spread
law enforcement agencies are not provoked or tempted to resort to extra-legal or illegal which have degenerated into terrorism, of terrorism, including but not limited to prolonged unresolved
conflicts, dehumanization of victims of terrorism in all its
methods. Police and all other governmental forces must adhere to some basic codes of it needs to be highlighted that it is forms and manifestations, lack of rule of law and violations of
conduct. necessary to deal with all forms of human rights, ethnic, national and religious discrimination,
political exclusion, socio-economic marginalization, and lack
extremism in their early stages through
of good governance.
Countering the subversive activities of terrorists: Government must give priority to defeating measures of conflict resolution
political subversions (e.g. by terrorists and Maoists). The emphasis should be on civil ii. Measures to prevent and combat terrorism, in particular by
accompanied by firm action against denying terrorists access to the means to carry out their attacks,
as opposed to military measures to counter terrorism and insurgency. Psychological hate campaigns and local violence in to their targets and to the desired impact of their attacks.
‘warfare’ or management of information services and the media, in conjunction with order to prevent their escalation. iii. Measures to build States’ capacity to prevent and combat
the intelligence wing of the police, can play an important role in achieving this objective. terrorism and to strengthen the role of the United Nations
system in this regard.

Providing the appropriate legal framework: Terrorism is an extraordinary crime. The ordinary iv. Measures to ensure respect for human rights for all and the
rule of law as the fundamental basis of the fight against
laws of the land may not be adequate to book a terrorist. This may require special laws terrorism, reaffirming that the promotion and protection of
and effective enforcement mechanisms, but with sufficient safeguards to prevent its human rights for all and the rule of law is essential to all
components of the strategy, recognizing that effective counter-
misuse.
terrorism measures and the protection of human rights are
not conflicting goals, but complementary and mutually
Building capacity: The capacity building exercise should extend to the intelligence reinforcing , and stressing the need to promote and protect
gathering machinery, security agencies, civil administration and the society at large. the rights of victims of terrorism.

As was highlighted in the Report on Crisis Management, the strategy should encompass Source: Adapted from http://www.un.org/terrorism/strategy-
counter-terrorism.shtml (extracted on 29.05.2008)
preventive, mitigation, relief and rehabilitative measures.

32 33
18
Defeating Communist Insurgency by Sir Robert Thompson, 1967, based on his comparative analysis of the British handling of the Malaya insurgency(1948-
1960) where he was an officer of the Government of Malaya and the South Vietnamese and American practices in their dealing with the Vietnamese
insurgency where he was the head of the British Advisory Mission (1961-1965).

4 DEALING WITH TERRORISM : LEGAL FRAMEWORK
4.1 The Legal Framework
4.1.1 The Laws to Deal with Terrorism
4.1.1.1 With the spurt in terrorism in recent years, many countries have enacted appropriate
and stringent anti-terrorism laws. India too has had various enactments for dealing with
terrorism in the past – (i) The Terrorist and Disruptive Activities (Prevention) Act, 1987
(allowed to lapse in 1995), and (ii) The Prevention of Terrorism Act, 2002 (repealed in
2004), Unlawful Activities (Prevention) Act, 1967 {as amended by the Unlawful Activities
(Prevention) Amendment Act, 2004}and the National Security Act, 1980. However, some
of these legislations were allowed to lapse/repealed as it was contended that the powers
conferred on the law enforcement agencies had the potential, and in fact, had been misused.
The Law Commission in its 173rd Report (2000) examined this issue and highlighted the
need for a law to deal firmly and effectively with terrorists. It also drafted “The Prevention of
Terrorist Activities Bill”. The constitutional validity of anti-terrorism laws has also been
upheld by the Supreme Court. Many have urged that a strong legal framework needs to be
created to deal with terrorism. Clearly, there is a felt need to strengthen the hands of security
forces in the fight against terror, even as human rights and constitutional values are protected.
The legislative measures adopted in India are dealt with briefly in the following paragraphs.
4.1.2 The National Security Act, 1980
4.1.2.1 The National Security Act, 1980 empowers the Union Government or the State
Governments to detain a person to prevent him from acting in any manner prejudicial to the
defence of India, the relations of India with foreign powers, or the security of India, or with
respect to any foreigner with a view to regulating his continued presence in India. Such
preventive detention can also be made with a view to preventing a person from acting in any
manner prejudicial to the security of the State or from acting in any manner prejudicial to the
maintenance of public order or from acting in any manner prejudicial to the maintenance of
supplies and services essential to the community. The Act also constitutes Advisory Boards
which have to approve any such detention.
34
Dealing with Terrorism : Legal Framework
4.1.3 The Terrorist and Disruptive Activities (Prevention) Act, 1985 and 1987
4.1.3.1 The Terrorist and Disruptive Activities (Prevention) Act, 1985, was enacted in May
1985, in the background of escalation of terrorist activities in some parts of the country. It
was expected then that it would be possible to control this menace within a period of two
years and, therefore, the life of the said Act was restricted to a period of two years. However,
it was subsequently realised that on account of various factors, what were stray incidents in
the beginning, had become a continuing menace especially in States like Punjab and it was
not only necessary to continue the said law but also strengthen it further. The aforesaid Act
of 1985 was due to expire on 23rd May, 1987. Since both Houses of Parliament were not in
session and it was necessary to take immediate action, the President promulgated the Terrorist
and Disruptive Activities (Prevention) Ordinance, 1987 (2 of 1987) on the 23rd May, which
came into force with effect from the 24th May, 1987. Subsequent to the promulgation of the
Ordinance, it was felt that its provisions needed further strengthening in order to cope up
with the menace of terrorism and the Terrorist and Disruptive Activiities (Prevention) Act.
1987 (commonly known as TADA) was enacted.
4.1.3.2 TADA, 1985 created two new offences, namely, “terrorist act” and “disruptive activities”.
To try these offences, TADA, 1985 established a system of special courts (“Designated Courts”).
The Law placed restrictions on the grant of bail by stipulating that unless the Court recorded
the existence of “reasonable grounds for believing” that the accused was “not guilty”, bail should
not be given. The police were given enhanced powers for detention of suspects; provision was
made for protection of witnesses and at the same time it was provided that trials under the
law should be accorded precedence over other cases. TADA, 1987 strengthened the mechanism
that had been provided in TADA, 1985. In the new law, certain offences were re-defined
(e.g. harbouring or concealing terrorists; being a member of a terrorist gang or terrorist
organization; holding of property derived as a result of terrorist acts etc.). It provided for a
new offence of “possession of unauthorized arms in notified areas”. It also provided for enhanced
penalty for certain specified offences. The police officers were given more powers in the matter
of seizure of property regarding which it was believed that it had been derived as a result of
terrorist acts, besides provision for attachment and forfeiture of such property was also made.
It extended the possible period of detention of a suspect in police custody pending investigation.
It made confession before a police officer admissible. Executive Magistrates were granted
powers under Section 167 CrPC. As a safeguard against abuse of powers given by TADA,
1987, it was stipulated that the “First Information Report” (FIR) cannot be registered except
after “prior approval of the District Superintendent of Police”. The Courts were empowered
to make certain presumptions (Section 21).
4.1.3.3 The constitutional validity of TADA, 1987 was challenged before the Supreme Court
in Kartar Singh vs State of Punjab [(1994) 3 SCC 569: AIR 1995 SCC 1726]. A Constitution
35

4 DEALING WITH TERRORISM : LEGAL FRAMEWORK
4.1 The Legal Framework
4.1.1 The Laws to Deal with Terrorism
4.1.1.1 With the spurt in terrorism in recent years, many countries have enacted appropriate
and stringent anti-terrorism laws. India too has had various enactments for dealing with
terrorism in the past – (i) The Terrorist and Disruptive Activities (Prevention) Act, 1987
(allowed to lapse in 1995), and (ii) The Prevention of Terrorism Act, 2002 (repealed in
2004), Unlawful Activities (Prevention) Act, 1967 {as amended by the Unlawful Activities
(Prevention) Amendment Act, 2004}and the National Security Act, 1980. However, some
of these legislations were allowed to lapse/repealed as it was contended that the powers
conferred on the law enforcement agencies had the potential, and in fact, had been misused.
The Law Commission in its 173rd Report (2000) examined this issue and highlighted the
need for a law to deal firmly and effectively with terrorists. It also drafted “The Prevention of
Terrorist Activities Bill”. The constitutional validity of anti-terrorism laws has also been
upheld by the Supreme Court. Many have urged that a strong legal framework needs to be
created to deal with terrorism. Clearly, there is a felt need to strengthen the hands of security
forces in the fight against terror, even as human rights and constitutional values are protected.
The legislative measures adopted in India are dealt with briefly in the following paragraphs.
4.1.2 The National Security Act, 1980
4.1.2.1 The National Security Act, 1980 empowers the Union Government or the State
Governments to detain a person to prevent him from acting in any manner prejudicial to the
defence of India, the relations of India with foreign powers, or the security of India, or with
respect to any foreigner with a view to regulating his continued presence in India. Such
preventive detention can also be made with a view to preventing a person from acting in any
manner prejudicial to the security of the State or from acting in any manner prejudicial to the
maintenance of public order or from acting in any manner prejudicial to the maintenance of
supplies and services essential to the community. The Act also constitutes Advisory Boards
which have to approve any such detention.
34
Dealing with Terrorism : Legal Framework
4.1.3 The Terrorist and Disruptive Activities (Prevention) Act, 1985 and 1987
4.1.3.1 The Terrorist and Disruptive Activities (Prevention) Act, 1985, was enacted in May
1985, in the background of escalation of terrorist activities in some parts of the country. It
was expected then that it would be possible to control this menace within a period of two
years and, therefore, the life of the said Act was restricted to a period of two years. However,
it was subsequently realised that on account of various factors, what were stray incidents in
the beginning, had become a continuing menace especially in States like Punjab and it was
not only necessary to continue the said law but also strengthen it further. The aforesaid Act
of 1985 was due to expire on 23rd May, 1987. Since both Houses of Parliament were not in
session and it was necessary to take immediate action, the President promulgated the Terrorist
and Disruptive Activities (Prevention) Ordinance, 1987 (2 of 1987) on the 23rd May, which
came into force with effect from the 24th May, 1987. Subsequent to the promulgation of the
Ordinance, it was felt that its provisions needed further strengthening in order to cope up
with the menace of terrorism and the Terrorist and Disruptive Activiities (Prevention) Act.
1987 (commonly known as TADA) was enacted.
4.1.3.2 TADA, 1985 created two new offences, namely, “terrorist act” and “disruptive activities”.
To try these offences, TADA, 1985 established a system of special courts (“Designated Courts”).
The Law placed restrictions on the grant of bail by stipulating that unless the Court recorded
the existence of “reasonable grounds for believing” that the accused was “not guilty”, bail should
not be given. The police were given enhanced powers for detention of suspects; provision was
made for protection of witnesses and at the same time it was provided that trials under the
law should be accorded precedence over other cases. TADA, 1987 strengthened the mechanism
that had been provided in TADA, 1985. In the new law, certain offences were re-defined
(e.g. harbouring or concealing terrorists; being a member of a terrorist gang or terrorist
organization; holding of property derived as a result of terrorist acts etc.). It provided for a
new offence of “possession of unauthorized arms in notified areas”. It also provided for enhanced
penalty for certain specified offences. The police officers were given more powers in the matter
of seizure of property regarding which it was believed that it had been derived as a result of
terrorist acts, besides provision for attachment and forfeiture of such property was also made.
It extended the possible period of detention of a suspect in police custody pending investigation.
It made confession before a police officer admissible. Executive Magistrates were granted
powers under Section 167 CrPC. As a safeguard against abuse of powers given by TADA,
1987, it was stipulated that the “First Information Report” (FIR) cannot be registered except
after “prior approval of the District Superintendent of Police”. The Courts were empowered
to make certain presumptions (Section 21).
4.1.3.3 The constitutional validity of TADA, 1987 was challenged before the Supreme Court
in Kartar Singh vs State of Punjab [(1994) 3 SCC 569: AIR 1995 SCC 1726]. A Constitution
35
 Combatting Terrorism
Bench of the Supreme Court upheld the law but asked the Government to provide certain
safeguards with a view to prevent any possible misuse of the stringent provisions of TADA,
1987. The provision regarding the admissibility of evidence adduced before police officers
was tempered and it was laid down that immediately after any such admission the accused
should be produced before a Judicial Magistrate. The Supreme Court also directed the
Government to constitute Review Committees for periodical “scrutiny” of the cases registered
4.1.4.2 The salient features of the Prevention of Terrorism Act, 2002 (POTA) were:
and also to review the prevailing situation in the areas notified as ones affected by terrorist
activities.
19
4.1.3.4 The validity of TADA, 1987 was extended in 1989, 1991 and 1993 . However,
after a series of complaints about its abuse, TADA, 1987, was allowed to lapse in 1995.
Subsequently, the country witnessed several terrorist incidents –including hijacking of the
Indian Airlines flight IC-814 to Kandahar in 1999 and the assault on Parliament on December
13, 2001. As a consequence, the Prevention of Terrorism Act, 2002 came into force.
4.1.4 Prevention of Terrorism Act, 2002
4.1.4.1 The Statement of Objects and Reasons of the Act stated:
“The country faces multifarious challenges in the management of its internal security. There is an
upsurge of terrorist activities, intensification of cross-border terrorist activities and insurgent groups
in different parts of the country. Very often, organized crime and terrorist activities are closely
inter-linked. Terrorism has now acquired global dimensions and has become a challenge for the
entire world. The reach and methods adopted by terrorist groups and organisations take advantage
of modern means of communication and technology using high-tech facilities available in the form
of communication systems, transport, sophisticated arms and various other means. This has enabled
them to strike and create terror among people at will. The existing criminal justice system is not
designed to deal with the types of heinous crimes with which the proposed law deals with.
In view of the situation, as stated above, it was felt necessary to enact a legislation for the prevention
of, and for dealing with terrorists’ activities. However, sufficient safeguards are sought to be
provided in the proposed law to prevent the possibility of its misuse. Parliament was not in session
and the circumstances existed which rendered it necessary for the President to promulgate the
Prevention of Terrorism Ordinance, 2001 on 24th October, 2001. During the Winter Session of
Parliament in December, 2001, steps were taken for the introduction of the Prevention of Terrorism
Bill, 2001 in the Lok Sabha. However, the Bill could not be introduced and considered in the
Lok Sabha as Parliament adjourned sine die on 19th December, 2001. The terrorist attack on
Parliament House on 13th December, 2001 and the prevailing circumstances rendered it necessary
for the President to promulgate the Prevention of Terrorism (Second) Ordinance, 2001 on 30th
36
19
Amended by by Act 16 of 1989, by Act 35 of 1991,and by Act 43 of 1993
Dealing with Terrorism : Legal Framework
December, 2001 with a view to give continuity to the Prevention of Terrorism Ordinance, 2001
promulgated on 24th October, 2001.
The Prevention of Terrorism Bill, 2002 seeks to replace the Prevention of Terrorism (Second)
Ordinance, 2001".
a. Definition of ‘Terrorist act’: The part of the definition stipulating the mens rea was
amended. As per the new definition the offence of terrorist act required, as the
first and foremost ingredient, the “intent to threaten the unity, integrity, security
or sovereignty of India or to strike terror in the people.” Raising funds for the
pupose of terrorism was included in the definition.
b. Arrest Provisions: Although an arrested person was permitted to meet a legal
practitioner during the course of interrogation, the legal practitioner
was not entitled to remain present throughout the period of interrogation
(Section 52).
c. Seizure and Forfeiture of Proceeds of Terrorism: The officer investigating an offence
under POTA could order seizure or attachment of property if he had reason to
believe that the property represents proceeds of terrorism. The Special Court
could also order forfeiture of such property if it was satisfied that such property
constituted proceeds of terrorism (Sections 6 to 17).
d. Interception of Communication: The Act provided for interception of wire, electronic
or oral communication at the request of the investigating officers after being
authorized by the competent authority. This could be done if it was believed
that such interception might provide or had provided evidence of any offence
involving a terrorist act (Sections 36 to 48).
e. Unauthorised Possession of Firearms: If any person was in unauthorized possession
of certain arms or ammunition specified in the Arms Rules, 1962 in a notified
area, or, explosive substances and leathal weapons capable of mass destruction
or biological or chemical substances of warfare in any area, whether notified or
not, he would be guilty of committing a terrorist act (Section 4).
f. Enhanced powers to Investigating Officers: Apart from the power to make an order
regarding seizing of property representing proceeds of terrorism and interception
of certain communications as mentioned in item (c), police officers not below the
rank of a Superintendent of Police could also record the confessions of a person
37
 Combatting Terrorism
Bench of the Supreme Court upheld the law but asked the Government to provide certain
safeguards with a view to prevent any possible misuse of the stringent provisions of TADA,
1987. The provision regarding the admissibility of evidence adduced before police officers
was tempered and it was laid down that immediately after any such admission the accused
should be produced before a Judicial Magistrate. The Supreme Court also directed the
Government to constitute Review Committees for periodical “scrutiny” of the cases registered
4.1.4.2 The salient features of the Prevention of Terrorism Act, 2002 (POTA) were:
and also to review the prevailing situation in the areas notified as ones affected by terrorist
activities.
19
4.1.3.4 The validity of TADA, 1987 was extended in 1989, 1991 and 1993 . However,
after a series of complaints about its abuse, TADA, 1987, was allowed to lapse in 1995.
Subsequently, the country witnessed several terrorist incidents –including hijacking of the
Indian Airlines flight IC-814 to Kandahar in 1999 and the assault on Parliament on December
13, 2001. As a consequence, the Prevention of Terrorism Act, 2002 came into force.
4.1.4 Prevention of Terrorism Act, 2002
4.1.4.1 The Statement of Objects and Reasons of the Act stated:
“The country faces multifarious challenges in the management of its internal security. There is an
upsurge of terrorist activities, intensification of cross-border terrorist activities and insurgent groups
in different parts of the country. Very often, organized crime and terrorist activities are closely
inter-linked. Terrorism has now acquired global dimensions and has become a challenge for the
entire world. The reach and methods adopted by terrorist groups and organisations take advantage
of modern means of communication and technology using high-tech facilities available in the form
of communication systems, transport, sophisticated arms and various other means. This has enabled
them to strike and create terror among people at will. The existing criminal justice system is not
designed to deal with the types of heinous crimes with which the proposed law deals with.
In view of the situation, as stated above, it was felt necessary to enact a legislation for the prevention
of, and for dealing with terrorists’ activities. However, sufficient safeguards are sought to be
provided in the proposed law to prevent the possibility of its misuse. Parliament was not in session
and the circumstances existed which rendered it necessary for the President to promulgate the
Prevention of Terrorism Ordinance, 2001 on 24th October, 2001. During the Winter Session of
Parliament in December, 2001, steps were taken for the introduction of the Prevention of Terrorism
Bill, 2001 in the Lok Sabha. However, the Bill could not be introduced and considered in the
Lok Sabha as Parliament adjourned sine die on 19th December, 2001. The terrorist attack on
Parliament House on 13th December, 2001 and the prevailing circumstances rendered it necessary
for the President to promulgate the Prevention of Terrorism (Second) Ordinance, 2001 on 30th
36
19
Amended by by Act 16 of 1989, by Act 35 of 1991,and by Act 43 of 1993
Dealing with Terrorism : Legal Framework
December, 2001 with a view to give continuity to the Prevention of Terrorism Ordinance, 2001
promulgated on 24th October, 2001.
The Prevention of Terrorism Bill, 2002 seeks to replace the Prevention of Terrorism (Second)
Ordinance, 2001".
a. Definition of ‘Terrorist act’: The part of the definition stipulating the mens rea was
amended. As per the new definition the offence of terrorist act required, as the
first and foremost ingredient, the “intent to threaten the unity, integrity, security
or sovereignty of India or to strike terror in the people.” Raising funds for the
pupose of terrorism was included in the definition.
b. Arrest Provisions: Although an arrested person was permitted to meet a legal
practitioner during the course of interrogation, the legal practitioner
was not entitled to remain present throughout the period of interrogation
(Section 52).
c. Seizure and Forfeiture of Proceeds of Terrorism: The officer investigating an offence
under POTA could order seizure or attachment of property if he had reason to
believe that the property represents proceeds of terrorism. The Special Court
could also order forfeiture of such property if it was satisfied that such property
constituted proceeds of terrorism (Sections 6 to 17).
d. Interception of Communication: The Act provided for interception of wire, electronic
or oral communication at the request of the investigating officers after being
authorized by the competent authority. This could be done if it was believed
that such interception might provide or had provided evidence of any offence
involving a terrorist act (Sections 36 to 48).
e. Unauthorised Possession of Firearms: If any person was in unauthorized possession
of certain arms or ammunition specified in the Arms Rules, 1962 in a notified
area, or, explosive substances and leathal weapons capable of mass destruction
or biological or chemical substances of warfare in any area, whether notified or
not, he would be guilty of committing a terrorist act (Section 4).
f. Enhanced powers to Investigating Officers: Apart from the power to make an order
regarding seizing of property representing proceeds of terrorism and interception
of certain communications as mentioned in item (c), police officers not below the
rank of a Superintendent of Police could also record the confessions of a person
37
 Combatting Terrorism Dealing with Terrorism : Legal Framework

either in writing or on any mechanical or electronic devise, which were admissible The Supreme Court upheld the Constitutional validity of the law while stipulating some
in the trial for any offence under the Act (Section 32). The safeguards introduced restrictions on the arbitrary use of certain powers.
by the Supreme Court Judgement in ‘Kartar Singh case’ were incorporated in
the law. 4.1.4.4 Government repealed POTA as it felt that its provisions were misused by some State
Governments and also that the Act had failed to serve its intended purpose. This was done
g. Increased Period of Police Custody: Although Section 167 of the CrPC was applicable, through the Prevention of Terrorism (Repeal) Act, 2004. After repeal of POTA, 2002, some
the reference to ’fifteen days’, ‘ninety days’, and ‘sixty days’, as mentioned therein provisions to deal with terrorism were incorporated in the Unlawful Activities (Prevention)
with regard to police custody was replaced by a reference to 30 days, 90 days Act, 1967 as amended by the Unlawful Activities (Prevention) Amendment Act, 2004.
and 90 days respectively. The period of custody could be extended by the Special
4.1.5 The Unlawful Activities (Prevention) Act, 1967
Court upto 180 days [Section 49(2)].
4.1.5.1 This law was enacted to provide for more effective prevention of certain unlawful
h. Constitution of Special Courts: The Act provided for constitution of one or more
activities of individuals and associations and for matters connected with it. It empowered
special courts for notified areas or group of cases by the Union Government or
appropriate authorities to declare any association as ‘unlawful’ if it is carrying out ‘unlawful
the State Government both for
activities’. This law was comprehensively amended by the Unlawful Activities (Prevention)
trial of cases under the Act Box 4.1: Findings of POTA Review Committee
in a Case Amendment Act, 2004 to deal with terrorist activities. Like POTA, it defines a ‘terrorist act’
(Sections 23 to 35).
‘After appreciating the evidence made available to us
and also defines a “terrorist organisation” as an organisation listed in the Schedule or an
i. Chapter on Dealing with Terrorist and considering the respective arguments of the learned organisation operating under the same name as an organisation so listed. It further provides
counsel of the accused persons and the learned Special a mechanism for forfeiture of the proceeds of terrorism apart from providing stringent
Organizations: A separate chapter Public Prosecutor, this Committee is of the considered
view that this incident had taken place on the date, punishments for terrorism related offences.
to deal with terrorist
time and place as alleged by the prosecution but
organizations was included. The certainly not as a part of conspiracy envisaged under 4.1.5.2 Thus, at present the only Union Legislation dealing specifically with terrorism is the
Schedule to the Act gave a list of the provisions of POTA. This Committee, therefore, is
Unlawful Activities (Prevention) Act, 1967 (ULPA) as amended by the Unlawful Activities
of the view that the accused persons may be tried
terrorist organizations. The Union under the provisions of IPC, Indian Railways Act, Prevention (Amendment) Act, 2004. Although ULPA incorporates provisions regarding
Government was authorized to Prevention of Damages of Public Property Act, Bombay seizure and forfeiture of property, enhanced punishments and listing of terrorist organizations,
Police Act etc., but not under the provisions of
add or remove an organization Prevention of Terrorism Act,(POTA) 2002.’ it does not provide for special courts or enhanced powers of investigation and provisions
from the Schedule or amend the regarding confessions made before police officers.
Source: The Committee reviewed the case case bearing
Schedule. The activities which FIR No. 09/02 Godhra Railway Police Station in terms
made an organization a terrorist of the POTA Repeal Act, 2004 and decided on 4.1.6 Need for a Comprehensive Anti Terrorist Legislation
16.5.2005; source: http://mha.nic.in/press-release/
organization were also listed pr210605.pdf
4.1.6.1 It needs to be mentioned here that the Law Commission of India, in its 173rd Report
(Sections 18 to 22).
on Prevention of Terrorism Bill, 2000, had recommended a separate legislation to deal with
j. Constitution of Review Committee: The Central and State Governments were to the menace of terrorism. The draft bill as recommended by the Law Commission of India
constitute one or more Review Committees for the purposes of the Act (Section included provisions such as definition of terrorist acts, enhanced punishment for such acts,
60). possession of certain unauthorized arms, special powers of investigating officers regarding
seizure and attachment of property representing proceeds of terrorism, constitution of special
4.1.4.3 The Constitutional validity of POTA was challenged in the case, People’s Union for courts, protection of witnesses, confessions made to police officers to be taken into consideration,
Civil Liberties vs Union of India, on the ground that the law violated basic human rights. enhanced police custody, constitution of review committees, protection of action taken in
good faith etc.

38 39
 Combatting Terrorism Dealing with Terrorism : Legal Framework

either in writing or on any mechanical or electronic devise, which were admissible The Supreme Court upheld the Constitutional validity of the law while stipulating some
in the trial for any offence under the Act (Section 32). The safeguards introduced restrictions on the arbitrary use of certain powers.
by the Supreme Court Judgement in ‘Kartar Singh case’ were incorporated in
the law. 4.1.4.4 Government repealed POTA as it felt that its provisions were misused by some State
Governments and also that the Act had failed to serve its intended purpose. This was done
g. Increased Period of Police Custody: Although Section 167 of the CrPC was applicable, through the Prevention of Terrorism (Repeal) Act, 2004. After repeal of POTA, 2002, some
the reference to ’fifteen days’, ‘ninety days’, and ‘sixty days’, as mentioned therein provisions to deal with terrorism were incorporated in the Unlawful Activities (Prevention)
with regard to police custody was replaced by a reference to 30 days, 90 days Act, 1967 as amended by the Unlawful Activities (Prevention) Amendment Act, 2004.
and 90 days respectively. The period of custody could be extended by the Special
4.1.5 The Unlawful Activities (Prevention) Act, 1967
Court upto 180 days [Section 49(2)].
4.1.5.1 This law was enacted to provide for more effective prevention of certain unlawful
h. Constitution of Special Courts: The Act provided for constitution of one or more
activities of individuals and associations and for matters connected with it. It empowered
special courts for notified areas or group of cases by the Union Government or
appropriate authorities to declare any association as ‘unlawful’ if it is carrying out ‘unlawful
the State Government both for
activities’. This law was comprehensively amended by the Unlawful Activities (Prevention)
trial of cases under the Act Box 4.1: Findings of POTA Review Committee
in a Case Amendment Act, 2004 to deal with terrorist activities. Like POTA, it defines a ‘terrorist act’
(Sections 23 to 35).
‘After appreciating the evidence made available to us
and also defines a “terrorist organisation” as an organisation listed in the Schedule or an
i. Chapter on Dealing with Terrorist and considering the respective arguments of the learned organisation operating under the same name as an organisation so listed. It further provides
counsel of the accused persons and the learned Special a mechanism for forfeiture of the proceeds of terrorism apart from providing stringent
Organizations: A separate chapter Public Prosecutor, this Committee is of the considered
view that this incident had taken place on the date, punishments for terrorism related offences.
to deal with terrorist
time and place as alleged by the prosecution but
organizations was included. The certainly not as a part of conspiracy envisaged under 4.1.5.2 Thus, at present the only Union Legislation dealing specifically with terrorism is the
Schedule to the Act gave a list of the provisions of POTA. This Committee, therefore, is
Unlawful Activities (Prevention) Act, 1967 (ULPA) as amended by the Unlawful Activities
of the view that the accused persons may be tried
terrorist organizations. The Union under the provisions of IPC, Indian Railways Act, Prevention (Amendment) Act, 2004. Although ULPA incorporates provisions regarding
Government was authorized to Prevention of Damages of Public Property Act, Bombay seizure and forfeiture of property, enhanced punishments and listing of terrorist organizations,
Police Act etc., but not under the provisions of
add or remove an organization Prevention of Terrorism Act,(POTA) 2002.’ it does not provide for special courts or enhanced powers of investigation and provisions
from the Schedule or amend the regarding confessions made before police officers.
Source: The Committee reviewed the case case bearing
Schedule. The activities which FIR No. 09/02 Godhra Railway Police Station in terms
made an organization a terrorist of the POTA Repeal Act, 2004 and decided on 4.1.6 Need for a Comprehensive Anti Terrorist Legislation
16.5.2005; source: http://mha.nic.in/press-release/
organization were also listed pr210605.pdf
4.1.6.1 It needs to be mentioned here that the Law Commission of India, in its 173rd Report
(Sections 18 to 22).
on Prevention of Terrorism Bill, 2000, had recommended a separate legislation to deal with
j. Constitution of Review Committee: The Central and State Governments were to the menace of terrorism. The draft bill as recommended by the Law Commission of India
constitute one or more Review Committees for the purposes of the Act (Section included provisions such as definition of terrorist acts, enhanced punishment for such acts,
60). possession of certain unauthorized arms, special powers of investigating officers regarding
seizure and attachment of property representing proceeds of terrorism, constitution of special
4.1.4.3 The Constitutional validity of POTA was challenged in the case, People’s Union for courts, protection of witnesses, confessions made to police officers to be taken into consideration,
Civil Liberties vs Union of India, on the ground that the law violated basic human rights. enhanced police custody, constitution of review committees, protection of action taken in
good faith etc.

38 39
 Combatting Terrorism
4.1.6.2 The need for a comprehensive anti-terrorism legislation cannot be better illustrated
than by the judgement of the Apex Court in the Rajiv Gandhi assassination case [State vs.
Nalini and ors. (1999) 5 SCC 253]. While the provisions of the Terrorist and Disruptive
Activities (Prevention) Act, 1987 have generally been decried as being harsh, none of these
could be applied to the perpetrators of the act as the Apex Court held that neither was it a
terrorist act u/s 3(1) nor were the activities of the perpetrators ‘disruptive’ u/s 4 of the TADA
Act. The relevant paras of the landmark judgement are reproduced below:
“61. From the aforesaid circumstances it is difficult for us to conclude that the conspirators intended,
at any time, to overawe the Government of India as by law established.
62. Nor can we hold that the conspirators ever entertained an intention to strike terror in people
or any section thereof. The mere fact that their action resulted in the killing of 18 persons which
would have struck great terror in the people of India has been projected as evidence that they
intended to strike terror in people. We have no doubt that the aftermath of the carnage at
Sriperumpudur had bubbled up waves of shock and terror throughout India. But there is absolutely
no evidence that any one of the conspirators ever desired the death of any Indian other than Rajiv
Gandhi. Among the series of confessions made by a record number of accused in any single case, as
in this case, not even one of them has stated that anybody had the desire or intention to murder one
more person along with Rajiv Gandhi except perhaps the murderer herself. Of course they should
have anticipated that in such a dastardly action more lives would be vulnerable to peril. But that
is a different matter and we cannot attribute an intention of the conspirators to kill anyone other
than Rajiv Gandhi and the contemporaneous destruction of the killer also.
63. Alternatively, even if Sivarasan and the top brass of LTTE knew that there was likelihood
of more casualties that cannot be equated to a situation that they did it with an intention to strike
terror in any section of the people.
64. In view of the paucity of materials to prove that the conspirators intended to overawe the
Government of India or to strike terror in the people of India we are unable to sustain the
conviction of offences under Section 3 of TADA.
… 4.1.6.3 Thus, even a specific law to fight against terrorism proved to be ineffective in a case
69. If there is any evidence, in this case, to show that any such preceding act was perpetrated by
any of the appellants towards killing of any police officer who was killed at the place of occurrence
it would, no doubt, amount to disruptive activity. But there is no such evidence that any such
activity was done for the purpose of killing any police personnel.
70. However, there is plethora of evidence for establishing that all such preceding activities were
done by many among the accused arrayed, for killing Rajiv Gandhi. But unfortunately Rajiv
Gandhi was not then “a person bound by oath under the Constitution to uphold the sovereignty
40
Dealing with Terrorism : Legal Framework
and integrity of India”. Even the Lok Sabha stood dissolved months prior to this incident and
hence it cannot be found that he was under an oath as a Member of Parliament.
…
74. We are, therefore, unable to sustain the conviction of appellants for offences under Section 3 or
4 of TADA.
…
555. In the present case applying the principles set out above on the interpretation of Section 3(1)
and analyses of this subsection of the TADA we do not find any difficulty in concluding that
evidence does not reflect that any of the accused entertained any such intention or had any of the
motive to overawe the Government or to strike terror among people. No doubt evidence is there that
the absconding accused Prabhakaran, supreme leader of LITE had personal animosity against
Rajiv Gandhi and LTTE cadre developed hatred towards Rajiv Gandhi, who was identified
with the atrocities allegedly committed by IPKF in Sri Lanka. There was no conspiracy to the
indiscriminate killing of persons. There is no evidence directly or circumstantially that Rajiv
Gandhi was killed with the intention contemplated under Section 3(1) of TADA. State of
Tamil Nadu was notified under TADA on 23.6.1991 and LTTE were declared an unlawful
association on 14.5.1992 under the provisions of the Unlawful Activity (Prevention) Act, 1957.
Apart from killing of Rajiv Gandhi no other terrorist act has been alleged in the State of Tamil
Nadu. Charge may be there but there is no evidence to support the charge. Mr. Natarajan said
that prosecution might refer to the killing of Padmanabhan in Tamil Nadu, leader of EPRLF,
which fact finds mention in the confession statement of Santhan (A-2). But then he said it was
not a terrorist act. It was killing of a rival Sri Lankan and in any case killing of Padmanabhan
is not a charge in the case before this Court. Mr. Altaf Ahmad said that when he earlier
mentioned the killing of Padmanabhan, it was only to show that LTTE was an organization
which brook no opposition and anyone opposing its objective was eliminated. Mr. Natarajan said
it was the case of the prosecution itself that Prabhakaran had personal animosity against Rajiv
Gandhi developed over a period of time and had motive to kill him.”
which involved a former Prime Minister of the country. While the audacity and designs of
various terrorist organizations actively engaged in terrorist activities inside the country (and
also outside) have been on the increase, the anti-terrorist legislations have not kept pace with
these developments. On the other hand, several countries are now increasingly aware of the
dangers of not having specific legislation to counter terrorism and specific incidents of terrorist
acts. This has galvanised them to pass stringent and effective laws. Thus, a number of countries
now have legislations which are comprehensive and effective in dealing with various facets of
terrorist activities including provisions regarding counter-terrorist measures along with
41
 Combatting Terrorism
4.1.6.2 The need for a comprehensive anti-terrorism legislation cannot be better illustrated
than by the judgement of the Apex Court in the Rajiv Gandhi assassination case [State vs.
Nalini and ors. (1999) 5 SCC 253]. While the provisions of the Terrorist and Disruptive
Activities (Prevention) Act, 1987 have generally been decried as being harsh, none of these
could be applied to the perpetrators of the act as the Apex Court held that neither was it a
terrorist act u/s 3(1) nor were the activities of the perpetrators ‘disruptive’ u/s 4 of the TADA
Act. The relevant paras of the landmark judgement are reproduced below:
“61. From the aforesaid circumstances it is difficult for us to conclude that the conspirators intended,
at any time, to overawe the Government of India as by law established.
62. Nor can we hold that the conspirators ever entertained an intention to strike terror in people
or any section thereof. The mere fact that their action resulted in the killing of 18 persons which
would have struck great terror in the people of India has been projected as evidence that they
intended to strike terror in people. We have no doubt that the aftermath of the carnage at
Sriperumpudur had bubbled up waves of shock and terror throughout India. But there is absolutely
no evidence that any one of the conspirators ever desired the death of any Indian other than Rajiv
Gandhi. Among the series of confessions made by a record number of accused in any single case, as
in this case, not even one of them has stated that anybody had the desire or intention to murder one
more person along with Rajiv Gandhi except perhaps the murderer herself. Of course they should
have anticipated that in such a dastardly action more lives would be vulnerable to peril. But that
is a different matter and we cannot attribute an intention of the conspirators to kill anyone other
than Rajiv Gandhi and the contemporaneous destruction of the killer also.
63. Alternatively, even if Sivarasan and the top brass of LTTE knew that there was likelihood
of more casualties that cannot be equated to a situation that they did it with an intention to strike
terror in any section of the people.
64. In view of the paucity of materials to prove that the conspirators intended to overawe the
Government of India or to strike terror in the people of India we are unable to sustain the
conviction of offences under Section 3 of TADA.
… 4.1.6.3 Thus, even a specific law to fight against terrorism proved to be ineffective in a case
69. If there is any evidence, in this case, to show that any such preceding act was perpetrated by
any of the appellants towards killing of any police officer who was killed at the place of occurrence
it would, no doubt, amount to disruptive activity. But there is no such evidence that any such
activity was done for the purpose of killing any police personnel.
70. However, there is plethora of evidence for establishing that all such preceding activities were
done by many among the accused arrayed, for killing Rajiv Gandhi. But unfortunately Rajiv
Gandhi was not then “a person bound by oath under the Constitution to uphold the sovereignty
40
Dealing with Terrorism : Legal Framework
and integrity of India”. Even the Lok Sabha stood dissolved months prior to this incident and
hence it cannot be found that he was under an oath as a Member of Parliament.
…
74. We are, therefore, unable to sustain the conviction of appellants for offences under Section 3 or
4 of TADA.
…
555. In the present case applying the principles set out above on the interpretation of Section 3(1)
and analyses of this subsection of the TADA we do not find any difficulty in concluding that
evidence does not reflect that any of the accused entertained any such intention or had any of the
motive to overawe the Government or to strike terror among people. No doubt evidence is there that
the absconding accused Prabhakaran, supreme leader of LITE had personal animosity against
Rajiv Gandhi and LTTE cadre developed hatred towards Rajiv Gandhi, who was identified
with the atrocities allegedly committed by IPKF in Sri Lanka. There was no conspiracy to the
indiscriminate killing of persons. There is no evidence directly or circumstantially that Rajiv
Gandhi was killed with the intention contemplated under Section 3(1) of TADA. State of
Tamil Nadu was notified under TADA on 23.6.1991 and LTTE were declared an unlawful
association on 14.5.1992 under the provisions of the Unlawful Activity (Prevention) Act, 1957.
Apart from killing of Rajiv Gandhi no other terrorist act has been alleged in the State of Tamil
Nadu. Charge may be there but there is no evidence to support the charge. Mr. Natarajan said
that prosecution might refer to the killing of Padmanabhan in Tamil Nadu, leader of EPRLF,
which fact finds mention in the confession statement of Santhan (A-2). But then he said it was
not a terrorist act. It was killing of a rival Sri Lankan and in any case killing of Padmanabhan
is not a charge in the case before this Court. Mr. Altaf Ahmad said that when he earlier
mentioned the killing of Padmanabhan, it was only to show that LTTE was an organization
which brook no opposition and anyone opposing its objective was eliminated. Mr. Natarajan said
it was the case of the prosecution itself that Prabhakaran had personal animosity against Rajiv
Gandhi developed over a period of time and had motive to kill him.”
which involved a former Prime Minister of the country. While the audacity and designs of
various terrorist organizations actively engaged in terrorist activities inside the country (and
also outside) have been on the increase, the anti-terrorist legislations have not kept pace with
these developments. On the other hand, several countries are now increasingly aware of the
dangers of not having specific legislation to counter terrorism and specific incidents of terrorist
acts. This has galvanised them to pass stringent and effective laws. Thus, a number of countries
now have legislations which are comprehensive and effective in dealing with various facets of
terrorist activities including provisions regarding counter-terrorist measures along with
41
 Combatting Terrorism
procedures and mechanism for speedy criminal justice. Thus, the United States have armed
themselves with the Uniting and Strengthening America by Providing Appropriate Tools
for Interpreting and Obstructing Terrorism Act (USA PATRIOT ACT), 2001 which was
further amended in March, 2006 by integrating the Financial Ant-Terrorism Act. The British
Parliament has also passed a Terrorism Act in March, 2006. The Australian Anti-Terrorism
Act, 2005 and the Canadian Anti-Terrorism Act, 2001 are other such examples. It needs to
be appreciated that terrorism is a global phenomenon. The case of India cannot be seen in
isolation. Hence, there have to be certain common elements in laws dealing with terrorism
internationally.
4.1.6.4 This issue was discussed at the National Workshop organised by the Commission
and the Sardar Vallabhbhai Patel National Police Academy, Hyderabad with various experts,
police officials, administrators and civil rights activists. It was noted that the country has
suffered huge losses of civilians as well as police and army personnel, besides colossal damage
to private and public property, in terrorist incidents, including the assassination of a serving
Prime Minister, a former Prime Minister, several political leaders, including a Chief Minister,
besides thousands of innocent civilians and security personnel. In the State of Jammu &
Kashmir alone, it has been reported that during the period from 1988 to 2001, more than
30,000 people were killed, including about 11,000 civilians, due to terrorist violence.
Terrorism and low intensity warfare have imposed new challenges on law enforcement that
we are yet to accommodate even at the conceptual level.
4.1.6.5 The Law Commission, while examining the Prevention of Terrorism Bill, 2000 (173rd
Report), observed as follows:
Law Commission is of the opinion that a legislation to fight terrorism is today a necessity in India.
It is not as if the enactment of such a legislation would by itself subdue terrorism. It may, however,
arm the State to fight terrorism more effectively. There is a good amount of substance in the
submission that the Indian Penal Code (IPC) was not designed to fight or to check organised crime
of the nature we are faced with now. Here is a case of organised groups or gangs trained, inspired
and supported by fundamentalists and anti-Indian elements trying to destablise the country who
make no secret of their intentions. The act of terrorism by its very nature generates terror and a
psychosis of fear among the populace. Because of the terror and the fear, people are rendered sullen.
They become helpless spectators of the atrocities committed before their eyes. They are afraid of
contacting the Police authorities about any information they may have about terrorist activities
much less to cooperate with the Police in dealing with terrorists. It is difficult to get any witnesses
because people are afraid of their own safety and safety of their families. It is well known that
during the worst days in Punjab, even the judges and prosecutors were gripped with such fear and
terror that they were not prepared to try or prosecute the cases against the terrorists. That is also
42
Dealing with Terrorism : Legal Framework
stated to be the position today in J&K and this is one reason which is contributing to the enormous
delay in going on with the trials against the terrorists. In such a situation, insisting upon independent
evidence or applying the normal peace-time standards of criminal prosecution, may be impracticable.
It is necessary to have a special law to deal with a special situation. An extraordinary situation
calls for an extraordinary law, designed to meet and check such extraordinary situation. It is one
thing to say that we must create and provide internal structures and safeguards against possible
abuse and misuse of the Act and altogether a different thing to say that because the law is liable
to be misused, we should not have such an Act at all. The Supreme Court has repeatedly held
that mere possibility of abuse cannnot be a ground for denying the vesting of powers or for declaring
a statute unconstitutional. In State of Rajasthan v. Union of India (1978 1 SCR p.1), the
Supreme Court observed “it must be remembered that merely because power may sometimes be
abused, it is no ground for denying the existence of power. The wisdom of man has not yet been
able to conceive of a government with power sufficient to answer all its legitimate needs and at the
same time incapable of mischief ” (at page 77). Similarly, in Collector of Customs v. Nathella
Sampathu Chetty (AIR 1962 SC 316), the Court observed, “The possibility of abuse of a statute
otherwise valid does not impart to it any element of invalidity”. In Kesavananda Bharati v.
State of Kerala (1973 Supp SCR p.1), Khanna J. observed as follows at page 755: “In exercising
the power of judicial review, the Courts cannot be oblivious of the practical needs of the government.
The door has to be left open for trial and error. Constitutional law like other mortal contrivances
has to take some chances. Opportunity must be allowed for vindicating reasonable belief by
experience.” To the same effect are observations of Krishna Iyer J.in T.N. Education Department
v. State of Tamilnadu (1980 1 SCR 1026 at 1031) and Commissioner H.R.E. v. Sri
Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (AIR 1954 SC 282). All these decisions
were referred to and followed by a recent nine-Judge Constitution Bench in Mafatlal Industries v.
Union of India [1997 (5) SCC 536].
4.1.6.6 A comparative analysis of the provisions of the anti-terrorism laws in India is given
in Annexure IV(1), and a comparison of certain provisions of anti terrorism laws in some
other countries is at Annexure IV(2). From these it is evident that most countries have been
adopting tough anti-terrorism measures whereas the provisions of similar laws have been
diluted in India over a period of time.
4.1.6.7 There can be no doubt that there is serious threat to the security of the country from
terrorists who are highly organized, motivated and possessing links with international terrorist
groups or organizations. The existing penal laws in India were not enacted to deal with this
situation and there is ample evidence to indicate that terrorists have been able to escape the
law either by exploiting the loopholes in the ordinary law and/or by intimidating witnesses
to subvert justice. The Commission has, therefore, carefully considered how this situation
can be best tackled. There is definitely a need to have stringent provisions to deal with
43
 Combatting Terrorism
procedures and mechanism for speedy criminal justice. Thus, the United States have armed
themselves with the Uniting and Strengthening America by Providing Appropriate Tools
for Interpreting and Obstructing Terrorism Act (USA PATRIOT ACT), 2001 which was
further amended in March, 2006 by integrating the Financial Ant-Terrorism Act. The British
Parliament has also passed a Terrorism Act in March, 2006. The Australian Anti-Terrorism
Act, 2005 and the Canadian Anti-Terrorism Act, 2001 are other such examples. It needs to
be appreciated that terrorism is a global phenomenon. The case of India cannot be seen in
isolation. Hence, there have to be certain common elements in laws dealing with terrorism
internationally.
4.1.6.4 This issue was discussed at the National Workshop organised by the Commission
and the Sardar Vallabhbhai Patel National Police Academy, Hyderabad with various experts,
police officials, administrators and civil rights activists. It was noted that the country has
suffered huge losses of civilians as well as police and army personnel, besides colossal damage
to private and public property, in terrorist incidents, including the assassination of a serving
Prime Minister, a former Prime Minister, several political leaders, including a Chief Minister,
besides thousands of innocent civilians and security personnel. In the State of Jammu &
Kashmir alone, it has been reported that during the period from 1988 to 2001, more than
30,000 people were killed, including about 11,000 civilians, due to terrorist violence.
Terrorism and low intensity warfare have imposed new challenges on law enforcement that
we are yet to accommodate even at the conceptual level.
4.1.6.5 The Law Commission, while examining the Prevention of Terrorism Bill, 2000 (173rd
Report), observed as follows:
Law Commission is of the opinion that a legislation to fight terrorism is today a necessity in India.
It is not as if the enactment of such a legislation would by itself subdue terrorism. It may, however,
arm the State to fight terrorism more effectively. There is a good amount of substance in the
submission that the Indian Penal Code (IPC) was not designed to fight or to check organised crime
of the nature we are faced with now. Here is a case of organised groups or gangs trained, inspired
and supported by fundamentalists and anti-Indian elements trying to destablise the country who
make no secret of their intentions. The act of terrorism by its very nature generates terror and a
psychosis of fear among the populace. Because of the terror and the fear, people are rendered sullen.
They become helpless spectators of the atrocities committed before their eyes. They are afraid of
contacting the Police authorities about any information they may have about terrorist activities
much less to cooperate with the Police in dealing with terrorists. It is difficult to get any witnesses
because people are afraid of their own safety and safety of their families. It is well known that
during the worst days in Punjab, even the judges and prosecutors were gripped with such fear and
terror that they were not prepared to try or prosecute the cases against the terrorists. That is also
42
Dealing with Terrorism : Legal Framework
stated to be the position today in J&K and this is one reason which is contributing to the enormous
delay in going on with the trials against the terrorists. In such a situation, insisting upon independent
evidence or applying the normal peace-time standards of criminal prosecution, may be impracticable.
It is necessary to have a special law to deal with a special situation. An extraordinary situation
calls for an extraordinary law, designed to meet and check such extraordinary situation. It is one
thing to say that we must create and provide internal structures and safeguards against possible
abuse and misuse of the Act and altogether a different thing to say that because the law is liable
to be misused, we should not have such an Act at all. The Supreme Court has repeatedly held
that mere possibility of abuse cannnot be a ground for denying the vesting of powers or for declaring
a statute unconstitutional. In State of Rajasthan v. Union of India (1978 1 SCR p.1), the
Supreme Court observed “it must be remembered that merely because power may sometimes be
abused, it is no ground for denying the existence of power. The wisdom of man has not yet been
able to conceive of a government with power sufficient to answer all its legitimate needs and at the
same time incapable of mischief ” (at page 77). Similarly, in Collector of Customs v. Nathella
Sampathu Chetty (AIR 1962 SC 316), the Court observed, “The possibility of abuse of a statute
otherwise valid does not impart to it any element of invalidity”. In Kesavananda Bharati v.
State of Kerala (1973 Supp SCR p.1), Khanna J. observed as follows at page 755: “In exercising
the power of judicial review, the Courts cannot be oblivious of the practical needs of the government.
The door has to be left open for trial and error. Constitutional law like other mortal contrivances
has to take some chances. Opportunity must be allowed for vindicating reasonable belief by
experience.” To the same effect are observations of Krishna Iyer J.in T.N. Education Department
v. State of Tamilnadu (1980 1 SCR 1026 at 1031) and Commissioner H.R.E. v. Sri
Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (AIR 1954 SC 282). All these decisions
were referred to and followed by a recent nine-Judge Constitution Bench in Mafatlal Industries v.
Union of India [1997 (5) SCC 536].
4.1.6.6 A comparative analysis of the provisions of the anti-terrorism laws in India is given
in Annexure IV(1), and a comparison of certain provisions of anti terrorism laws in some
other countries is at Annexure IV(2). From these it is evident that most countries have been
adopting tough anti-terrorism measures whereas the provisions of similar laws have been
diluted in India over a period of time.
4.1.6.7 There can be no doubt that there is serious threat to the security of the country from
terrorists who are highly organized, motivated and possessing links with international terrorist
groups or organizations. The existing penal laws in India were not enacted to deal with this
situation and there is ample evidence to indicate that terrorists have been able to escape the
law either by exploiting the loopholes in the ordinary law and/or by intimidating witnesses
to subvert justice. The Commission has, therefore, carefully considered how this situation
can be best tackled. There is definitely a need to have stringent provisions to deal with
43
 Combatting Terrorism
terrorists. The Commission also recognizes that there could be a propensity to abuse such
provisions. However, when faced with the need to protect national security and integrity,
there is ample justification for having strong anti-terrorism provisions in the law. In fact,
many western countries with strong traditions of democracy and civil liberty have enacted
such legislations to deal with the threat of terrorism and their laws contain provisions pertaining
to constitution of special fast track courts, making release on bail extremely difficult for the
accused, enhanced penalties cutting the source of funding for terror activities etc. The
Commission is of the view that while terrorism is indeed an extraordinary threat which
requires special legal provisions to deal with it, there is also need to provide sufficient safeguards
to prevent its misuse.
4.1.6.8 After the repeal of POTA, as mentioned earlier, a number of provisions from that Act
have now been incorporated in the Unlawful Activities Prevention Act either in toto or in a
modified form. The Commission has examined whether the Unlawful Activities Prevention
Act is the appropriate legislation to incorporate provisions to combat terrorism. After due
consideration, the Commission is of the view that instead of the Unlawful Activities Prevention
Act, it would be more appropriate if a new chapter on terrorism is made a part of the National
Security Act, 1980. A prime consideration which weighed with the Commission in making
this recommendation is that the Unlawful Activities Prevention Act deals primarily with the
effective prevention of certain unlawful activities of individuals and associations and connected
matters, whereas the National Security Act deals with prevention of those activities which
are prejudicial to national security and integrity and also contains provisions for preventive
detention which do not find place in normal laws. Terrorism as has been stated earlier in this
Report is much more ominous than a mere unlawful activity: it is a grave threat to national
security and integrity. The National Security Act is therefore more relevant for incorporating
provisions to deal with terrorism. It was for the same reason that the Commission in its first
report on ’Right to Information’ had recommended that provisions of the Official Secrets Act
dealing with official secrecy required in the interest of national security and integrity, be
included in the National Security Act. The Commission has also examined the adequacy of
the existing legal provisions to deal with terrorism in the subsequent paragraphs of this
chapter.
4.1.6.9 Recommendation
a. A comprehensive and effective legal framework to deal with all aspects of
terrorism needs to be enacted. The law should have adequate safeguards
to prevent its misuse. The legal provisions to deal with terrorism could be
incorporated in a separate chapter in the National Security Act, 1980.
44
Dealing with Terrorism : Legal Framework
4.2 Definition of Terrorism
4.2.1 Although TADA, 1987 did not define the term ‘terrorism’, it defined a ‘terrorist act’
as follows:
“3. Punishment for terrorist acts. – (1) Whoever with intent to overawe the Government as
by law established or to strike terror in the people or any section of the people or to alienate any
section of the people or to adversely affect the harmony amongst different sections of the people does
any act or thing by using bombs, dynamite or other explosive substances or inflammable substances
or lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether
biological or otherwise) of a hazardous nature in such a manner as to cause, or as is likely to cause,
death of, or injuries to, any person or persons or loss of, or damage to, or destruction of, property or
disruption of any supplies or services essential to the life of the community, or detains any person
and threatens to kill or injure such person in order to compel the Government or any other person
to do or abstain from doing any act, commits a terrorist act”
4.2.2 The Law Commission (173rd Report), examined this definition and suggested certain
changes. It proposed inclusion of sabotage of computer systems and other equipment used
for the defence of India or used by any other agency of Government of India. It also
recommended that memberships of banned organizations, raising funds for or fostering
activities of banned organization should be construed to be a ‘terrorist act’. The following
definition of terrorism was recommended:
“3. (1) Whoever, (a) with intent to threaten the unity, integrity, security or sovereignty of India or
to strike terror in the people or any section of the people does any act or thing by using bombs, dynamite
or other explosive substances or inflammable substances or fire arms or other lethal weapons or poisons
or noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a
hazardous nature in such a manner as to cause, or as is likely to cause, death of, or injuries to, any
person or persons or loss of, or damage to, or destruction of, property or disruption of any supplies or
services essential to the life of the community or causes damage to or destruction of any property or
equipment used or intended to be used for the defence of India or in connection with any other purposes
of the Government of India, any State Government or any of their agencies, or detains any person
and threatens to kill or injure such person in order to compel the Government or any other person to do
or abstain from doing any act, (b) is or continues to be a member of an association declared unlawful
under the Unlawful Activities (Prevention) Act, 1967 or voluntarily does an act aiding or promoting
in any manner the objects of such an association and is either in possession of any unlicenced firearm,
ammunition, explosive or other instrument or substance capable of causing mass destruction and
commits any act resulting in loss of human life or grievous injury to any person or causes significant
damage to any property, commits a terrorist act.”
45
 Combatting Terrorism
terrorists. The Commission also recognizes that there could be a propensity to abuse such
provisions. However, when faced with the need to protect national security and integrity,
there is ample justification for having strong anti-terrorism provisions in the law. In fact,
many western countries with strong traditions of democracy and civil liberty have enacted
such legislations to deal with the threat of terrorism and their laws contain provisions pertaining
to constitution of special fast track courts, making release on bail extremely difficult for the
accused, enhanced penalties cutting the source of funding for terror activities etc. The
Commission is of the view that while terrorism is indeed an extraordinary threat which
requires special legal provisions to deal with it, there is also need to provide sufficient safeguards
to prevent its misuse.
4.1.6.8 After the repeal of POTA, as mentioned earlier, a number of provisions from that Act
have now been incorporated in the Unlawful Activities Prevention Act either in toto or in a
modified form. The Commission has examined whether the Unlawful Activities Prevention
Act is the appropriate legislation to incorporate provisions to combat terrorism. After due
consideration, the Commission is of the view that instead of the Unlawful Activities Prevention
Act, it would be more appropriate if a new chapter on terrorism is made a part of the National
Security Act, 1980. A prime consideration which weighed with the Commission in making
this recommendation is that the Unlawful Activities Prevention Act deals primarily with the
effective prevention of certain unlawful activities of individuals and associations and connected
matters, whereas the National Security Act deals with prevention of those activities which
are prejudicial to national security and integrity and also contains provisions for preventive
detention which do not find place in normal laws. Terrorism as has been stated earlier in this
Report is much more ominous than a mere unlawful activity: it is a grave threat to national
security and integrity. The National Security Act is therefore more relevant for incorporating
provisions to deal with terrorism. It was for the same reason that the Commission in its first
report on ’Right to Information’ had recommended that provisions of the Official Secrets Act
dealing with official secrecy required in the interest of national security and integrity, be
included in the National Security Act. The Commission has also examined the adequacy of
the existing legal provisions to deal with terrorism in the subsequent paragraphs of this
chapter.
4.1.6.9 Recommendation
a. A comprehensive and effective legal framework to deal with all aspects of
terrorism needs to be enacted. The law should have adequate safeguards
to prevent its misuse. The legal provisions to deal with terrorism could be
incorporated in a separate chapter in the National Security Act, 1980.
44
Dealing with Terrorism : Legal Framework
4.2 Definition of Terrorism
4.2.1 Although TADA, 1987 did not define the term ‘terrorism’, it defined a ‘terrorist act’
as follows:
“3. Punishment for terrorist acts. – (1) Whoever with intent to overawe the Government as
by law established or to strike terror in the people or any section of the people or to alienate any
section of the people or to adversely affect the harmony amongst different sections of the people does
any act or thing by using bombs, dynamite or other explosive substances or inflammable substances
or lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether
biological or otherwise) of a hazardous nature in such a manner as to cause, or as is likely to cause,
death of, or injuries to, any person or persons or loss of, or damage to, or destruction of, property or
disruption of any supplies or services essential to the life of the community, or detains any person
and threatens to kill or injure such person in order to compel the Government or any other person
to do or abstain from doing any act, commits a terrorist act”
4.2.2 The Law Commission (173rd Report), examined this definition and suggested certain
changes. It proposed inclusion of sabotage of computer systems and other equipment used
for the defence of India or used by any other agency of Government of India. It also
recommended that memberships of banned organizations, raising funds for or fostering
activities of banned organization should be construed to be a ‘terrorist act’. The following
definition of terrorism was recommended:
“3. (1) Whoever, (a) with intent to threaten the unity, integrity, security or sovereignty of India or
to strike terror in the people or any section of the people does any act or thing by using bombs, dynamite
or other explosive substances or inflammable substances or fire arms or other lethal weapons or poisons
or noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a
hazardous nature in such a manner as to cause, or as is likely to cause, death of, or injuries to, any
person or persons or loss of, or damage to, or destruction of, property or disruption of any supplies or
services essential to the life of the community or causes damage to or destruction of any property or
equipment used or intended to be used for the defence of India or in connection with any other purposes
of the Government of India, any State Government or any of their agencies, or detains any person
and threatens to kill or injure such person in order to compel the Government or any other person to do
or abstain from doing any act, (b) is or continues to be a member of an association declared unlawful
under the Unlawful Activities (Prevention) Act, 1967 or voluntarily does an act aiding or promoting
in any manner the objects of such an association and is either in possession of any unlicenced firearm,
ammunition, explosive or other instrument or substance capable of causing mass destruction and
commits any act resulting in loss of human life or grievous injury to any person or causes significant
damage to any property, commits a terrorist act.”
45
 Combatting Terrorism
4.2.3 The definition adopted in the Prevention of Terrorism Act, 2002 was as follows:
“3. Punishment for terrorist acts -
(1) Whoever,—
(a) with intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in
the people or any section of the people does any act or thing by using bombs, dynamite or other
explosive substances or inflammable substances or firearms or other lethal weapons or poisons or
noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a
hazardous nature or by any other means whatsoever, in such a manner as to cause, or likely to
cause, death of, or injuries to any person or persons or loss of, or damage to, or destruction of property
or disruption of any supplies or services essential to the life of the community or causes damage or
destruction of any property or equipment used or intended to be used for the defence of India or in
connection with any other purposes of the Government of India, any State Government or any of
their agencies, or detains any person and threatens to kill or injure such person in order to compel
the Government or any other person to do or abstain from doing any act;
(b) is or continues to be a member of an association declared unlawful under the Unlawful
Activities (Prevention) Act, 1967 (37 of 1967), or voluntarily does an act aiding or promoting
in any manner the objects of such association and in either case is in possession of any unlicensed
firearms, ammunition, explosive or other instrument or substance capable of causing mass destruction
and commits any act resulting in loss of human life or grievous injury to any person or causes
significant damage to any property, commits a terrorist act.
Explanation- For the purposes of this sub-section, “a terrorist act” shall include the act of raising
funds intended for the purpose of terrorism.”
Thus, a major change in the definition of ‘terrorist act’ was the substitution of ‘with intent to
overawe the government’ with the phrase “with intent to threaten the unity, integrity, security or
sovereignty of India’. With this amendment the definition of ‘terrorist act’ became more precise.
Another major change in the definition of ‘terrorist act’ was clause 3 (1) b which stipulated
that being a member of an ‘unlawful association’ or promoting any such association and
possessing substances capable of causing mass destruction and committing any act resulting
in loss of human life or grievous injury, would also amount to a ‘terrorist act’.
4.2.4 After the repeal of POTA, 2002, part (a) of the above mentioned definition was adopted
in the Unlawful Activities (Prevention) Amendment Act, 2004 -Section 15:
Section 15: Terrorist Act -Whoever, with intent to threaten the unity, integrity, security or sovereignty
of India or to strike terror in the people or any section of the people in India or in any foreign
46
Dealing with Terrorism : Legal Framework
country, does any act by using bombs, dynamite or other explosive substances or inflammable
substances or firearms or other lethal weapons or poisons or noxious gases or other chemicals or by
any other substances (whether biological or otherwise) of a hazardous nature, in such a manner as
to cause, or likely to cause, death of, or injuries to any person or persons or loss of, or damage to, or
destruction of, property or disruption of any supplies or services essential to the life of the community
in India or in any foreign country or causes damage or destruction of any property or equipment
used or intended to be used for the defence of India or in connection with any other purposes of the
Government of India, any State Government or any of their agencies, or detains any person and
threatens to kill or injure such person in order to compel the Government in India or the Government
of a foreign country or any other person to do or abstain from doing any act, commits a terrorist act.
4.2.5 The definition of ‘terrorist act’ was scrutinized and upheld by the Supreme Court (in
the Kartar Singh case). However, as mentioned earlier in paragraph 4.1.6.2, in the Rajiv
Gandhi assassination case, the Apex Court had come to the conclusion that this was not a
terrorist act and the accused were sentenced for murder under section 302 read with section
120B IPC. The Supreme Court stated:
552. Under Section 3 of TADA in order there is a terrorist act three essential conditions must be
present and these are contained in Sub-section (1) of Section 3 - (1) criminal activity must me
committed with the requisite intention or motive, (2) weapons must have been used, and (3)
consequence must have ensued.
Having stipulated thus, it agreed with the arguments of the counsel of the accused that: “…
in the present case though the evidence may show that weapons and consequence as contemplated by
Section 3(1) is there it is lacking so far as the intention is concerned. Prosecution had to prove that the act
was done with the intention to overawe the Government or to strike terror in people or any section of people
or to adversely affect the harmony amongst different sections of people. There is no evidence that any of the
accused had such an intention.” (para 552)
4.2.6 The Commission is of a different view and believes that the assassination of the former
Prime Minister along with 18 other persons was in itself sufficient to conclude that this
heinous act was done with a view to strike terror in people. Besides it has been observed that
many a time terrorist outfits target personnel belonging to the security forces or enforcement
agencies in order to demoralize them or to avenge any strict action taken by them. The basic
purpose behind these acts is to terrorise other personnel from taking action against terrorists.
The Commission, therefore, feels that assassination of important public figures, as also murder
of public functionaries by way of revenge or with a view to subdue others in the organization,
should be categorized as a terrorist act.
47
 Combatting Terrorism
4.2.3 The definition adopted in the Prevention of Terrorism Act, 2002 was as follows:
“3. Punishment for terrorist acts -
(1) Whoever,—
(a) with intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in
the people or any section of the people does any act or thing by using bombs, dynamite or other
explosive substances or inflammable substances or firearms or other lethal weapons or poisons or
noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a
hazardous nature or by any other means whatsoever, in such a manner as to cause, or likely to
cause, death of, or injuries to any person or persons or loss of, or damage to, or destruction of property
or disruption of any supplies or services essential to the life of the community or causes damage or
destruction of any property or equipment used or intended to be used for the defence of India or in
connection with any other purposes of the Government of India, any State Government or any of
their agencies, or detains any person and threatens to kill or injure such person in order to compel
the Government or any other person to do or abstain from doing any act;
(b) is or continues to be a member of an association declared unlawful under the Unlawful
Activities (Prevention) Act, 1967 (37 of 1967), or voluntarily does an act aiding or promoting
in any manner the objects of such association and in either case is in possession of any unlicensed
firearms, ammunition, explosive or other instrument or substance capable of causing mass destruction
and commits any act resulting in loss of human life or grievous injury to any person or causes
significant damage to any property, commits a terrorist act.
Explanation- For the purposes of this sub-section, “a terrorist act” shall include the act of raising
funds intended for the purpose of terrorism.”
Thus, a major change in the definition of ‘terrorist act’ was the substitution of ‘with intent to
overawe the government’ with the phrase “with intent to threaten the unity, integrity, security or
sovereignty of India’. With this amendment the definition of ‘terrorist act’ became more precise.
Another major change in the definition of ‘terrorist act’ was clause 3 (1) b which stipulated
that being a member of an ‘unlawful association’ or promoting any such association and
possessing substances capable of causing mass destruction and committing any act resulting
in loss of human life or grievous injury, would also amount to a ‘terrorist act’.
4.2.4 After the repeal of POTA, 2002, part (a) of the above mentioned definition was adopted
in the Unlawful Activities (Prevention) Amendment Act, 2004 -Section 15:
Section 15: Terrorist Act -Whoever, with intent to threaten the unity, integrity, security or sovereignty
of India or to strike terror in the people or any section of the people in India or in any foreign
46
Dealing with Terrorism : Legal Framework
country, does any act by using bombs, dynamite or other explosive substances or inflammable
substances or firearms or other lethal weapons or poisons or noxious gases or other chemicals or by
any other substances (whether biological or otherwise) of a hazardous nature, in such a manner as
to cause, or likely to cause, death of, or injuries to any person or persons or loss of, or damage to, or
destruction of, property or disruption of any supplies or services essential to the life of the community
in India or in any foreign country or causes damage or destruction of any property or equipment
used or intended to be used for the defence of India or in connection with any other purposes of the
Government of India, any State Government or any of their agencies, or detains any person and
threatens to kill or injure such person in order to compel the Government in India or the Government
of a foreign country or any other person to do or abstain from doing any act, commits a terrorist act.
4.2.5 The definition of ‘terrorist act’ was scrutinized and upheld by the Supreme Court (in
the Kartar Singh case). However, as mentioned earlier in paragraph 4.1.6.2, in the Rajiv
Gandhi assassination case, the Apex Court had come to the conclusion that this was not a
terrorist act and the accused were sentenced for murder under section 302 read with section
120B IPC. The Supreme Court stated:
552. Under Section 3 of TADA in order there is a terrorist act three essential conditions must be
present and these are contained in Sub-section (1) of Section 3 - (1) criminal activity must me
committed with the requisite intention or motive, (2) weapons must have been used, and (3)
consequence must have ensued.
Having stipulated thus, it agreed with the arguments of the counsel of the accused that: “…
in the present case though the evidence may show that weapons and consequence as contemplated by
Section 3(1) is there it is lacking so far as the intention is concerned. Prosecution had to prove that the act
was done with the intention to overawe the Government or to strike terror in people or any section of people
or to adversely affect the harmony amongst different sections of people. There is no evidence that any of the
accused had such an intention.” (para 552)
4.2.6 The Commission is of a different view and believes that the assassination of the former
Prime Minister along with 18 other persons was in itself sufficient to conclude that this
heinous act was done with a view to strike terror in people. Besides it has been observed that
many a time terrorist outfits target personnel belonging to the security forces or enforcement
agencies in order to demoralize them or to avenge any strict action taken by them. The basic
purpose behind these acts is to terrorise other personnel from taking action against terrorists.
The Commission, therefore, feels that assassination of important public figures, as also murder
of public functionaries by way of revenge or with a view to subdue others in the organization,
should be categorized as a terrorist act.
47
 Combatting Terrorism
4.2.7 Inclusion of Terror Financing in the Definition of a ‘Terrorist Act’
4.2.7.1 Any counter terrorism strategy can succeed only if the sources of terrorist funding are
blocked which is why recent trends in anti terror legislation worldwide focus on this aspect of
the fight against terrorism. In India also the legislations to deal with terrorism had made
provisions for tackling terror financing activities.
4.2.7.2 POTA: In the Prevention of Terrorism Act, 2002 (POTA), the phrase ‘act of raising
funds intended for the purpose of terrorism’ was included in the definition of the term ‘a terrorist act’
provided in Section 3(1), by way of an Explanation to it. Thus, the penalties provided in
offences mentioned in Sections 3(2) and 3(3) (maximum penalty of death and life imprisonment)
of the Act became applicable to such financing activities also, if associated with the commission
of these offences. Further, fund raising for a ‘terrorist organization’ was also made an offence
(Section 22). This included:
i. Inviting others to provide money or property with the intention of using it or having reasonable
cause to suspect that it may be used, for the purposes of terrorism
ii. Receiving money or property with the intention of using it or having reasonable cause to
suspect that it may be used, for the purposes of terrorism
iii. Providing money or property knowing or having reasonable cause to suspect that it may be
used, for the purposes of terrorism
iv. The provision of money or property in the above mentioned situations referred to its being
given, lent or otherwise made available, whether or not for consideration.
A person guilty of an offence under Section 22 was liable on conviction to be imprisoned for
a term not exceeding fourteen years or with fine or with both.
4.2.7.3 ULPAA: The current anti-terrorist law in operation, i.e. the Unlawful Activities
(Prevention) Amendment Act, 2004 (ULPAA) provides for imprisonment for a term extending
to life for raising funds for the purpose of committing a terrorist act (Section 17). Section 40
of the Act makes the raising of funds for a terrorist organization an offence (the provisions are
similar in nature to those provided in Section 22 of POTA mentioned above). However, it
does not reckon the ‘financing of terrorist activities’ as a ‘terrorist act’ as was done under
POTA. This, in effect, is a dilution in the penal law as the commission of a ‘terrorist act’
resulting in death of a person was earlier punishable with death or imprisonment for life. In
cases where it did not result in the death of a person, the punishment could extend to life
imprisonment {Section 3(2)}. In addition to the above, as conspiring or attempting to commit,
advocating, abetting, advising, inciting or knowingly facilitating the commission of a ‘terrorist
48
Dealing with Terrorism : Legal Framework
act’ or any act preparatory to a ‘terrorist act’ was an offence punishable with imprisonment
for a term which could extend to life imprisonment under POTA {Section 3(3)}, this provision
was applicable in case of ‘raising funds intended for the purpose of terrorism’ also, as under
POTA this constituted a ‘terrorist act’.
4.2.7.4 The Commission is of the view that providing material support, including raising or
channelising funds for terrorist activities is as serious an offence as the terrorist act itself and
deserves severe punishment. This could be ensured by the inclusion of ‘raising funds intended
for the purpose of terrorism’ in the definition of a ‘terrorist act’.
4.2.8 Certain Acts Committed by Members or Supporters of Terrorist Organizations
4.2.8.1 POTA had contained a paragraph in the definition of a ‘terrorist act’ which provided
that the possession of unlicensed fire arms etc. and commitment of an act resulting in loss of
human life or causing damage to property by any member or a supporter of an association
declared unlawful under the Unlawful Activities (Prevention) Act, 1967 was also a ‘terrorist
act’. This provision was included on the recommendation of the Law Commission of India in
its 173rd report on Prevention of Terrorism Bill, 2000. The Law Commission had occasion to
look at international legislations and it was of the view that the legislation in the United
Kingdom defined ‘terrorism’ and ‘terrorist’ in more extensive terms.
4.2.8.2 Thus the UK Terrorism Act 2000 defines ‘terrorism’ as follows:
“1. – (1) In this Act “terrorism” means the use or threat of action where-
(a) the action falls within subsection (2),
(b) the use or threat is designed to influence the government or to intimidate the public
or a section of the public, and
(c ) the use or threat is made for the purpose of advancing a political, religious or
ideological cause.
(2 Action falls within this subsection if it –
(a) involves serious violence against a person,
(b) involves serious damage to property,
(c ) endangers a person’s life, other than that of the person committing the action,
(d) creates a serious risk to the health or safety of the public or a section of the public, or
49
 Combatting Terrorism
4.2.7 Inclusion of Terror Financing in the Definition of a ‘Terrorist Act’
4.2.7.1 Any counter terrorism strategy can succeed only if the sources of terrorist funding are
blocked which is why recent trends in anti terror legislation worldwide focus on this aspect of
the fight against terrorism. In India also the legislations to deal with terrorism had made
provisions for tackling terror financing activities.
4.2.7.2 POTA: In the Prevention of Terrorism Act, 2002 (POTA), the phrase ‘act of raising
funds intended for the purpose of terrorism’ was included in the definition of the term ‘a terrorist act’
provided in Section 3(1), by way of an Explanation to it. Thus, the penalties provided in
offences mentioned in Sections 3(2) and 3(3) (maximum penalty of death and life imprisonment)
of the Act became applicable to such financing activities also, if associated with the commission
of these offences. Further, fund raising for a ‘terrorist organization’ was also made an offence
(Section 22). This included:
i. Inviting others to provide money or property with the intention of using it or having reasonable
cause to suspect that it may be used, for the purposes of terrorism
ii. Receiving money or property with the intention of using it or having reasonable cause to
suspect that it may be used, for the purposes of terrorism
iii. Providing money or property knowing or having reasonable cause to suspect that it may be
used, for the purposes of terrorism
iv. The provision of money or property in the above mentioned situations referred to its being
given, lent or otherwise made available, whether or not for consideration.
A person guilty of an offence under Section 22 was liable on conviction to be imprisoned for
a term not exceeding fourteen years or with fine or with both.
4.2.7.3 ULPAA: The current anti-terrorist law in operation, i.e. the Unlawful Activities
(Prevention) Amendment Act, 2004 (ULPAA) provides for imprisonment for a term extending
to life for raising funds for the purpose of committing a terrorist act (Section 17). Section 40
of the Act makes the raising of funds for a terrorist organization an offence (the provisions are
similar in nature to those provided in Section 22 of POTA mentioned above). However, it
does not reckon the ‘financing of terrorist activities’ as a ‘terrorist act’ as was done under
POTA. This, in effect, is a dilution in the penal law as the commission of a ‘terrorist act’
resulting in death of a person was earlier punishable with death or imprisonment for life. In
cases where it did not result in the death of a person, the punishment could extend to life
imprisonment {Section 3(2)}. In addition to the above, as conspiring or attempting to commit,
advocating, abetting, advising, inciting or knowingly facilitating the commission of a ‘terrorist
48
Dealing with Terrorism : Legal Framework
act’ or any act preparatory to a ‘terrorist act’ was an offence punishable with imprisonment
for a term which could extend to life imprisonment under POTA {Section 3(3)}, this provision
was applicable in case of ‘raising funds intended for the purpose of terrorism’ also, as under
POTA this constituted a ‘terrorist act’.
4.2.7.4 The Commission is of the view that providing material support, including raising or
channelising funds for terrorist activities is as serious an offence as the terrorist act itself and
deserves severe punishment. This could be ensured by the inclusion of ‘raising funds intended
for the purpose of terrorism’ in the definition of a ‘terrorist act’.
4.2.8 Certain Acts Committed by Members or Supporters of Terrorist Organizations
4.2.8.1 POTA had contained a paragraph in the definition of a ‘terrorist act’ which provided
that the possession of unlicensed fire arms etc. and commitment of an act resulting in loss of
human life or causing damage to property by any member or a supporter of an association
declared unlawful under the Unlawful Activities (Prevention) Act, 1967 was also a ‘terrorist
act’. This provision was included on the recommendation of the Law Commission of India in
its 173rd report on Prevention of Terrorism Bill, 2000. The Law Commission had occasion to
look at international legislations and it was of the view that the legislation in the United
Kingdom defined ‘terrorism’ and ‘terrorist’ in more extensive terms.
4.2.8.2 Thus the UK Terrorism Act 2000 defines ‘terrorism’ as follows:
“1. – (1) In this Act “terrorism” means the use or threat of action where-
(a) the action falls within subsection (2),
(b) the use or threat is designed to influence the government or to intimidate the public
or a section of the public, and
(c ) the use or threat is made for the purpose of advancing a political, religious or
ideological cause.
(2 Action falls within this subsection if it –
(a) involves serious violence against a person,
(b) involves serious damage to property,
(c ) endangers a person’s life, other than that of the person committing the action,
(d) creates a serious risk to the health or safety of the public or a section of the public, or
49
 Combatting Terrorism Dealing with Terrorism : Legal Framework

(e) is designed seriously to interfere with or seriously to disrupt an electronic system. 4.2.8.4 On a careful consideration of such provisions in the UK Act, the Law Commission
was of the view that provisions to make membership of terrorist organizations and raising
(3) The use or threat of action falling within subsection (2) which involves the use of firearms funds for terrorist organizations a terrorist act, should be included in the new law. Accordingly,
or explosives is terrorism whether or not subsection (1)(b) is satisfied. the Law Commission introduced paragraph (b) to Section 3 (1) in the Draft Bill. As mentioned
above, this paragraph was also included in the definition of a ‘terrorist act’ in POTA. After
(4) In this section –
the repeal of POTA, the new law i.e. ULPAA did not include such a provision while defining
(a) “action” includes action outside the United Kingdom, a ‘terrorist act’. However, it provided for a punishment extending to life imprisonment in
case of a person who is a member of a ‘terrorist gang’ or ‘terrorist organisation’ which is
(b) a reference to any person or to property is a reference to any person, or to property, ‘involved in terrorist act’ (Section 20).
wherever situated,
4.2.8.5 The Commission feels that including provisions which make the possession of certain
(c ) a reference to the public includes a reference to the public of a country other than the arms etc. and commission of certain acts by members or supporters of ‘terrorist organizations’
United Kingdom, and a ‘terrorist act’ would strengthen the law enforcement authorities in their fight against
Box: 4.2 Membership of and Fund Raising terrorism. However, the Commission feels that although paragraph (b) of Section 3(1) of
(d) “the government” means the for a ‘Terrorist Organization’ POTA equated the commission of a ‘terrorist act’ with an act committed by a member or
government of the United “Sections 20, 21 and 22 of POTA is similar to that of supporter of a terrorist organization on possession of certain arms etc., its subjection to the
Kingdom, of a Part of the Sections 11, 12 and 15 of the Terrorism Act, 2000 of qualifying condition that such an act should result in ‘loss of human life or grievous injury to
United Kingdom or of a United Kingdom.
any person’ or cause ‘significant damage to any property’ substantially reduced its intended
country other than the United Such provisions are found to be quite necessary all over
the world in anti-terrorism efforts. Sections 20, 21 and impact. The Commission is of the considered view that whether such an act results in the
Kingdom. 22 are penal in nature that demand strict construction. loss, injury or damage mentioned above is inconsequential, what is paramount is the
These provisions are a departure from the ordinary law
commission of the act by members or supporters of terrorist organizations on possession of
(5) In this Act a reference to action taken since the said law was found to be inadequate and not
sufficiently effective to deal with the threat of terrorism. certain arms etc. Accordingly, paragraph (b) of Section 3(1) under POTA which was not
for the purposes of terrorism includes a Moreover, the crime referred to herein under POTA is included in the Unlawful Activities (Prevention) Amendment Act, 2004 should be included
reference to action taken for the benefit aggravated in nature. Hence special provisions are
contemplated to combat the new threat of terrorism. in the definition of a ‘terrorist act’ in the proposed new legislation. However, it should cover
of a prescribed organisation.”
Support either verbal or monetary, with a view to not only the acts committed by members or supporters of terrorist organizations resulting in
nurture terrorism and terrorist activities is causing new ‘loss of human life or grievous injury to any person’ or causing ‘significant damage to any
4.2.8.3 Further, Section 3 of the UK Act challenges. Therefore Parliament finds that such
prescribes for ‘proscribed organisations’. support to terrorist organizations or terrorist activities property’, but also acts which are likely to cause such death, injury or damage.
need to be made punishable. Viewing the legislation
Sections 11 to 13 relate to offences pertaining
in its totality it cannot be said that these provisions are 4.2.8.6 The extradition of accused persons assumes significance in case of terrorism related
to membership and support of ‘proscribed obnoxious.”
offences, as such persons often either flee from India or conspire from their bases in other
organisations’. Sections 15 to 18 relate to Source: Supreme Court’s decision in the case of People’s
countries. The Extradition Act, 1962 governs the extradition of such accused persons. Apart
offences pertaining to fund raising and money Union for Civil Liberties & Anr., W.P. No. 389 0f 2002;
from this law, extradition is also governed by bilateral treaties between countries. Extraditions
laundering related to terrorism. Section 40 http://www.judis.nic.in/supremecourt/qrydisp.aspx?
filename=25734; extracted on 17.04.2008 are generally governed by the ‘principle of double criminality’- which stipulates that the
defines a ‘terrorist’ to mean a person who has
alleged crime for which extradition is being sought must be criminal in both the demanding
committed certain offences under the Act or has been concerned in the commission, preparation
and the requested countries20. It has been observed that in a number of cases, India’s request
or instigation of acts of terrorism. Section 54 pertains to weapon training, while Section 56
for extradition was either turned down or avoidable delay and legal complications were
pertains to directing a terrorist organization and Section 57 pertains to possession of an
created in the Courts of some foreign countries on the plea that the person to be extradited
article for terrorist purposes.

50 51
20
http://www.britannica.com/eb/topic-169892/double-criminality
 Combatting Terrorism Dealing with Terrorism : Legal Framework

(e) is designed seriously to interfere with or seriously to disrupt an electronic system. 4.2.8.4 On a careful consideration of such provisions in the UK Act, the Law Commission
was of the view that provisions to make membership of terrorist organizations and raising
(3) The use or threat of action falling within subsection (2) which involves the use of firearms funds for terrorist organizations a terrorist act, should be included in the new law. Accordingly,
or explosives is terrorism whether or not subsection (1)(b) is satisfied. the Law Commission introduced paragraph (b) to Section 3 (1) in the Draft Bill. As mentioned
above, this paragraph was also included in the definition of a ‘terrorist act’ in POTA. After
(4) In this section –
the repeal of POTA, the new law i.e. ULPAA did not include such a provision while defining
(a) “action” includes action outside the United Kingdom, a ‘terrorist act’. However, it provided for a punishment extending to life imprisonment in
case of a person who is a member of a ‘terrorist gang’ or ‘terrorist organisation’ which is
(b) a reference to any person or to property is a reference to any person, or to property, ‘involved in terrorist act’ (Section 20).
wherever situated,
4.2.8.5 The Commission feels that including provisions which make the possession of certain
(c ) a reference to the public includes a reference to the public of a country other than the arms etc. and commission of certain acts by members or supporters of ‘terrorist organizations’
United Kingdom, and a ‘terrorist act’ would strengthen the law enforcement authorities in their fight against
Box: 4.2 Membership of and Fund Raising terrorism. However, the Commission feels that although paragraph (b) of Section 3(1) of
(d) “the government” means the for a ‘Terrorist Organization’ POTA equated the commission of a ‘terrorist act’ with an act committed by a member or
government of the United “Sections 20, 21 and 22 of POTA is similar to that of supporter of a terrorist organization on possession of certain arms etc., its subjection to the
Kingdom, of a Part of the Sections 11, 12 and 15 of the Terrorism Act, 2000 of qualifying condition that such an act should result in ‘loss of human life or grievous injury to
United Kingdom or of a United Kingdom.
any person’ or cause ‘significant damage to any property’ substantially reduced its intended
country other than the United Such provisions are found to be quite necessary all over
the world in anti-terrorism efforts. Sections 20, 21 and impact. The Commission is of the considered view that whether such an act results in the
Kingdom. 22 are penal in nature that demand strict construction. loss, injury or damage mentioned above is inconsequential, what is paramount is the
These provisions are a departure from the ordinary law
commission of the act by members or supporters of terrorist organizations on possession of
(5) In this Act a reference to action taken since the said law was found to be inadequate and not
sufficiently effective to deal with the threat of terrorism. certain arms etc. Accordingly, paragraph (b) of Section 3(1) under POTA which was not
for the purposes of terrorism includes a Moreover, the crime referred to herein under POTA is included in the Unlawful Activities (Prevention) Amendment Act, 2004 should be included
reference to action taken for the benefit aggravated in nature. Hence special provisions are
contemplated to combat the new threat of terrorism. in the definition of a ‘terrorist act’ in the proposed new legislation. However, it should cover
of a prescribed organisation.”
Support either verbal or monetary, with a view to not only the acts committed by members or supporters of terrorist organizations resulting in
nurture terrorism and terrorist activities is causing new ‘loss of human life or grievous injury to any person’ or causing ‘significant damage to any
4.2.8.3 Further, Section 3 of the UK Act challenges. Therefore Parliament finds that such
prescribes for ‘proscribed organisations’. support to terrorist organizations or terrorist activities property’, but also acts which are likely to cause such death, injury or damage.
need to be made punishable. Viewing the legislation
Sections 11 to 13 relate to offences pertaining
in its totality it cannot be said that these provisions are 4.2.8.6 The extradition of accused persons assumes significance in case of terrorism related
to membership and support of ‘proscribed obnoxious.”
offences, as such persons often either flee from India or conspire from their bases in other
organisations’. Sections 15 to 18 relate to Source: Supreme Court’s decision in the case of People’s
countries. The Extradition Act, 1962 governs the extradition of such accused persons. Apart
offences pertaining to fund raising and money Union for Civil Liberties & Anr., W.P. No. 389 0f 2002;
from this law, extradition is also governed by bilateral treaties between countries. Extraditions
laundering related to terrorism. Section 40 http://www.judis.nic.in/supremecourt/qrydisp.aspx?
filename=25734; extracted on 17.04.2008 are generally governed by the ‘principle of double criminality’- which stipulates that the
defines a ‘terrorist’ to mean a person who has
alleged crime for which extradition is being sought must be criminal in both the demanding
committed certain offences under the Act or has been concerned in the commission, preparation
and the requested countries20. It has been observed that in a number of cases, India’s request
or instigation of acts of terrorism. Section 54 pertains to weapon training, while Section 56
for extradition was either turned down or avoidable delay and legal complications were
pertains to directing a terrorist organization and Section 57 pertains to possession of an
created in the Courts of some foreign countries on the plea that the person to be extradited
article for terrorist purposes.

50 51
20
http://www.britannica.com/eb/topic-169892/double-criminality
 Combatting Terrorism
could not be unequivocally held to have committed or been wanted in any criminal case,
which will have to be a crime in the laws of both countries. Such an eventuality can be
avoided, at least so far as our law is concerned, by suitably wording the definition of ‘terrorism’
or ‘terrorist act’ in the Indian laws.
4.2.9 Recommendations
a. There is need to define more clearly those criminal acts which can be
construed as being terrorist in nature. The salient features of this definition
should inter alia include the following:
i. use of firearms, explosives or any other lethal substance to cause or
likely to cause damage to life and property and essential
infrastructure including installations/establishments having military
significance.
ii. assassination of (including attempt thereof) public functionaries.
The intent should be to threaten the integrity, security and
sovereignty of India or overawe public functionaries or to terrorise
people or sections of people.
iii. Detention of any person or threat to kill or injure any person to
force the government to act or abstain from acting in a particular
manner.
iv. Providing/facilitating material support, including finances, for the
aforesaid activities.
v. Commission of certain acts or possession of certain arms etc. by
members or supporters of terrorist organizations which cause or
are likely to cause loss of life, injury to a person or damage to any
property.
4.3 Bail Provisions
4.3.1 Under Section 167 of CrPC, every person who is arrested, should be produced before
the nearest magistrate within a period of 24 hours of arrest. The magistrate is authorized to
52
Dealing with Terrorism : Legal Framework
extend the detention for a maximum period of 15 days if the investigation cannot be completed
within 24 hours. After the expiry of 15 days, the accused must once again be produced before
the magistrate who may, after justification, extend the detention for another 15 days, but
such detentions cannot be extended beyond 60 days. Sections 436 to 450 of CrPC deal with
the bail provisions.
4.3.2 In laws dealing with terrorism, the bail provisions are made stringent so that the
accused does not get easily released on bail. Under TADA, Section 20(8) made grant of bail
to the accused difficult by providing that bail should not be given unless:
a. The Public Prosecutor has been given an opportunity to oppose the application
for such release, and
b. Where the Public Prosecutor opposes the application, the Court is satisfied that
there are reasonable grounds for believing that he is not guilty of such offence
and that he is not likely to commit any offence while on bail.
4.3.3 Similar provisions existed in POTA. Sections 49(6) and 49(7) of POTA laid down:
(6) Notwithstanding anything contained in the Code, no person accused of an offence punishable
under this Act shall, if in custody, be released on bail or on his own bond unless the Court
gives the Public Prosecutor an opportunity of being heard.
(7) Where the Public Prosecutor opposes the application of accused to release on bail, no person
accused of an offence punishable under this Act or any rule made there-under shall be
released on bail until the Court is satisfied that there are grounds for believing that he is
not guilty of committing such offence:
Provided that after the expiry of a period of one year from the date of detention of the accused for
an offence under this Act, the provisions of sub-section (6) of this section shall apply.
4.3.4 This provision does not find place in the Unlawful Activities (Prevention) Amendment
Act, 2004. Those who have opposed these provisions have argued that even in the most
heinous cases, the general position is “bail but not jail”, which should also be the case in
terrorism related matters. Moreover, the stipulation that the “court has to be satisfied that the
accused has not committed any offence” has been perceived as being too strict. In fact, one of
the main reasons cited for the repeal of POTA was the prolonged periods of detention as the
accused were not able to get bail.
53
 Combatting Terrorism
could not be unequivocally held to have committed or been wanted in any criminal case,
which will have to be a crime in the laws of both countries. Such an eventuality can be
avoided, at least so far as our law is concerned, by suitably wording the definition of ‘terrorism’
or ‘terrorist act’ in the Indian laws.
4.2.9 Recommendations
a. There is need to define more clearly those criminal acts which can be
construed as being terrorist in nature. The salient features of this definition
should inter alia include the following:
i. use of firearms, explosives or any other lethal substance to cause or
likely to cause damage to life and property and essential
infrastructure including installations/establishments having military
significance.
ii. assassination of (including attempt thereof) public functionaries.
The intent should be to threaten the integrity, security and
sovereignty of India or overawe public functionaries or to terrorise
people or sections of people.
iii. Detention of any person or threat to kill or injure any person to
force the government to act or abstain from acting in a particular
manner.
iv. Providing/facilitating material support, including finances, for the
aforesaid activities.
v. Commission of certain acts or possession of certain arms etc. by
members or supporters of terrorist organizations which cause or
are likely to cause loss of life, injury to a person or damage to any
property.
4.3 Bail Provisions
4.3.1 Under Section 167 of CrPC, every person who is arrested, should be produced before
the nearest magistrate within a period of 24 hours of arrest. The magistrate is authorized to
52
Dealing with Terrorism : Legal Framework
extend the detention for a maximum period of 15 days if the investigation cannot be completed
within 24 hours. After the expiry of 15 days, the accused must once again be produced before
the magistrate who may, after justification, extend the detention for another 15 days, but
such detentions cannot be extended beyond 60 days. Sections 436 to 450 of CrPC deal with
the bail provisions.
4.3.2 In laws dealing with terrorism, the bail provisions are made stringent so that the
accused does not get easily released on bail. Under TADA, Section 20(8) made grant of bail
to the accused difficult by providing that bail should not be given unless:
a. The Public Prosecutor has been given an opportunity to oppose the application
for such release, and
b. Where the Public Prosecutor opposes the application, the Court is satisfied that
there are reasonable grounds for believing that he is not guilty of such offence
and that he is not likely to commit any offence while on bail.
4.3.3 Similar provisions existed in POTA. Sections 49(6) and 49(7) of POTA laid down:
(6) Notwithstanding anything contained in the Code, no person accused of an offence punishable
under this Act shall, if in custody, be released on bail or on his own bond unless the Court
gives the Public Prosecutor an opportunity of being heard.
(7) Where the Public Prosecutor opposes the application of accused to release on bail, no person
accused of an offence punishable under this Act or any rule made there-under shall be
released on bail until the Court is satisfied that there are grounds for believing that he is
not guilty of committing such offence:
Provided that after the expiry of a period of one year from the date of detention of the accused for
an offence under this Act, the provisions of sub-section (6) of this section shall apply.
4.3.4 This provision does not find place in the Unlawful Activities (Prevention) Amendment
Act, 2004. Those who have opposed these provisions have argued that even in the most
heinous cases, the general position is “bail but not jail”, which should also be the case in
terrorism related matters. Moreover, the stipulation that the “court has to be satisfied that the
accused has not committed any offence” has been perceived as being too strict. In fact, one of
the main reasons cited for the repeal of POTA was the prolonged periods of detention as the
accused were not able to get bail.
53
 Combatting Terrorism
4.3.5 Investigation agencies have put forward the argument that persons accused of terrorism
are not ordinary criminals and witnesses are afraid to depose against such persons. Therefore
gathering evidence against them is difficult and time consuming, and if such persons are let
out on bail they are bound to adversely influence the investigation.
4.3.6 The Law Commission examined this issue in its 173rd Report and observed as follows:
One set of objections was that the provision in sub-clause (6A) to the effect that no bail shall be
granted unless the court is satisfied that “there are grounds for believing that he is not guilty of
committing such offence” makes it almost impossible for any accused to get bail. In our opinion,
there is no substance in this objection inasmuch as this is the very language which was used in sub-
section (8) of section 20 of TADA and which has been the subject-matter of elaborate discussion
and decision by the Supreme Court in Kartar Singh’s case. The Supreme Court has pointed out
that the language of sub-section (8) of section 20 of TADA is in substance no different from the
language employed in section 437(1) of the Code, section 35 of the Foreign Exchange Regulation
Act, 1976 and section 104 of the Customs Act, 1962. The Supreme Court accordingly upheld
the validity of sub-section (8) of section 20 of TADA holding that the respective provisions contained
therein are not violative of Article 21 of the Constitution. Be that as it may, having regard to the
purpose and object underlying the Act and the context in which the Act has become necessary, these
restrictive provisions may not be likely to be assailed on any reasonable basis. The objection,
therefore, is unacceptable. However, certain other useful suggestions were made to which a reference
is necessary. Justice J.S. Verma, Chairperson, National Human Rights Commission suggested that
for the purpose of bail, the offences in the Act should be classified on the lines indicated by the
Supreme Court in its decision in Shaheen Welfare Society’s case [1996 (2) JT 719 (SC)]. This
view was supported by Shri P.P. Rao, Senior Advocate, who emphasised that a routine refusal
of bail was unacceptable. He added that since the normal rule was bail, any restriction placed
thereon in an anti-terrorism law should not be disproportionate, making the very provision for
bail meaningless. Several other participants also supported this line of reasoning which we find
eminently reasonable and acceptable. In Shaheen Welfare Society’s case (supra), the Supreme
Court has suggested categorisation of offences under TADA into four categories for the purpose of
bail. The following observations are relevant: “For the purpose of grant of bail to TADA detenus,
we divide the undertrials into four classes, namely, (a) hardcore undertrials whose release would
prejudice the prosecution case and whose liberty may prove to be a menace to society in general and
to the complainant and prosecution witnesses in particular; (b) other undertrials whose overt acts
or involvement directly attract sections 3 and/or 4 of the TADA Act; (c) undertrials who are
roped in, not because of any activity directly attracting sections 3 and 4, but by virtue of sections
120B or 147, IPC and; (d) those undertrials who were found possessing incriminating articles
in notified areas and are booked under section 5 of TADA. Ordinarily, it is true that the
provisions of sections 20(8) and 20(9) of TADA would apply to all the aforesaid classes. But
54
Dealing with Terrorism : Legal Framework
while adopting a pragmatic and just approach, no one can dispute the fact that all of them cannot
be dealt with by the same yardstick. Different approaches would be justified on the basis of the
gravity of the charges. Adopting this approach we are of the opinion that undertrials falling
within group (a) cannot receive liberal treatment. Cases of undertrials falling in group (b)
would have to be differently dealt with, in that, if they have been in prison for five years or more
and their trial is not likely to be completed within the next six months, they can be released on bail
unless the court comes to the conclusion that their antecedents are such that releasing them may be
harmful to the lives of the complainants, the family members of the complainants, or witnesses.
Cases of undertrials falling in groups (c) and (d) can be dealt with leniently and they can be
released if they have been in jail for three years and two years respectively. Those falling in group
(b), when released on bail, may be released on bail of not less than Rs.50,000/- with one surety
for like amount and those falling in groups (c) and (d) may be released on bail on their executing
a bond for Rs.30,000/- with one surety for like amount, subject to the following terms:
(1) the accused shall report to the concerned police station once a week;
(2) the accused shall remain within the area of jurisdiction of the Designated Court pending
trial and shall not leave the area without the permission of the Designated Court;
(3) the accused shall deposit his passport, if any, with the Designated Court. If he does not hold
a passport, he shall file an affidavit to that effect before the Designated Court. The Designated
Court may ascertain the correct position from the passport authorities, if it deems it
necessary;
(4) The Designated Court will be at liberty to cancel the bail if any of those conditions is
violated or a case for cancellation of bail is otherwise made out.
(5) Before granting bail, a notice shall be given to the public prosecutor and an opportunity
shall be given to him to oppose the application for such release. The Designated Court may
refuse bail in very special circumstances for reasons to be recorded in writing. These conditions
may be relaxed in cases of those under groups (c) and (d) and, for special reasons to be
recorded in the case of group (b) prisoners. Also, these directions may not be applied by the
Designated Court in exceptionally grave cases such as the Bombay Bomb Blast Case where
a lengthy trial is inevitable looking to the number of accused, the number of witnesses and
the nature of charges unless the court feels that the trial is being unduly delayed. However,
even in such cases it is essential that the Review Committee examines the case against each
accused bearing the above directions in mind, to ensure that TADA provisions are not
unnecessarily invoked. Although the Court observed in the said judgment that the aforesaid
directions were “a one-time measure meant only to alleviate the current situation”, the
55
 Combatting Terrorism
4.3.5 Investigation agencies have put forward the argument that persons accused of terrorism
are not ordinary criminals and witnesses are afraid to depose against such persons. Therefore
gathering evidence against them is difficult and time consuming, and if such persons are let
out on bail they are bound to adversely influence the investigation.
4.3.6 The Law Commission examined this issue in its 173rd Report and observed as follows:
One set of objections was that the provision in sub-clause (6A) to the effect that no bail shall be
granted unless the court is satisfied that “there are grounds for believing that he is not guilty of
committing such offence” makes it almost impossible for any accused to get bail. In our opinion,
there is no substance in this objection inasmuch as this is the very language which was used in sub-
section (8) of section 20 of TADA and which has been the subject-matter of elaborate discussion
and decision by the Supreme Court in Kartar Singh’s case. The Supreme Court has pointed out
that the language of sub-section (8) of section 20 of TADA is in substance no different from the
language employed in section 437(1) of the Code, section 35 of the Foreign Exchange Regulation
Act, 1976 and section 104 of the Customs Act, 1962. The Supreme Court accordingly upheld
the validity of sub-section (8) of section 20 of TADA holding that the respective provisions contained
therein are not violative of Article 21 of the Constitution. Be that as it may, having regard to the
purpose and object underlying the Act and the context in which the Act has become necessary, these
restrictive provisions may not be likely to be assailed on any reasonable basis. The objection,
therefore, is unacceptable. However, certain other useful suggestions were made to which a reference
is necessary. Justice J.S. Verma, Chairperson, National Human Rights Commission suggested that
for the purpose of bail, the offences in the Act should be classified on the lines indicated by the
Supreme Court in its decision in Shaheen Welfare Society’s case [1996 (2) JT 719 (SC)]. This
view was supported by Shri P.P. Rao, Senior Advocate, who emphasised that a routine refusal
of bail was unacceptable. He added that since the normal rule was bail, any restriction placed
thereon in an anti-terrorism law should not be disproportionate, making the very provision for
bail meaningless. Several other participants also supported this line of reasoning which we find
eminently reasonable and acceptable. In Shaheen Welfare Society’s case (supra), the Supreme
Court has suggested categorisation of offences under TADA into four categories for the purpose of
bail. The following observations are relevant: “For the purpose of grant of bail to TADA detenus,
we divide the undertrials into four classes, namely, (a) hardcore undertrials whose release would
prejudice the prosecution case and whose liberty may prove to be a menace to society in general and
to the complainant and prosecution witnesses in particular; (b) other undertrials whose overt acts
or involvement directly attract sections 3 and/or 4 of the TADA Act; (c) undertrials who are
roped in, not because of any activity directly attracting sections 3 and 4, but by virtue of sections
120B or 147, IPC and; (d) those undertrials who were found possessing incriminating articles
in notified areas and are booked under section 5 of TADA. Ordinarily, it is true that the
provisions of sections 20(8) and 20(9) of TADA would apply to all the aforesaid classes. But
54
Dealing with Terrorism : Legal Framework
while adopting a pragmatic and just approach, no one can dispute the fact that all of them cannot
be dealt with by the same yardstick. Different approaches would be justified on the basis of the
gravity of the charges. Adopting this approach we are of the opinion that undertrials falling
within group (a) cannot receive liberal treatment. Cases of undertrials falling in group (b)
would have to be differently dealt with, in that, if they have been in prison for five years or more
and their trial is not likely to be completed within the next six months, they can be released on bail
unless the court comes to the conclusion that their antecedents are such that releasing them may be
harmful to the lives of the complainants, the family members of the complainants, or witnesses.
Cases of undertrials falling in groups (c) and (d) can be dealt with leniently and they can be
released if they have been in jail for three years and two years respectively. Those falling in group
(b), when released on bail, may be released on bail of not less than Rs.50,000/- with one surety
for like amount and those falling in groups (c) and (d) may be released on bail on their executing
a bond for Rs.30,000/- with one surety for like amount, subject to the following terms:
(1) the accused shall report to the concerned police station once a week;
(2) the accused shall remain within the area of jurisdiction of the Designated Court pending
trial and shall not leave the area without the permission of the Designated Court;
(3) the accused shall deposit his passport, if any, with the Designated Court. If he does not hold
a passport, he shall file an affidavit to that effect before the Designated Court. The Designated
Court may ascertain the correct position from the passport authorities, if it deems it
necessary;
(4) The Designated Court will be at liberty to cancel the bail if any of those conditions is
violated or a case for cancellation of bail is otherwise made out.
(5) Before granting bail, a notice shall be given to the public prosecutor and an opportunity
shall be given to him to oppose the application for such release. The Designated Court may
refuse bail in very special circumstances for reasons to be recorded in writing. These conditions
may be relaxed in cases of those under groups (c) and (d) and, for special reasons to be
recorded in the case of group (b) prisoners. Also, these directions may not be applied by the
Designated Court in exceptionally grave cases such as the Bombay Bomb Blast Case where
a lengthy trial is inevitable looking to the number of accused, the number of witnesses and
the nature of charges unless the court feels that the trial is being unduly delayed. However,
even in such cases it is essential that the Review Committee examines the case against each
accused bearing the above directions in mind, to ensure that TADA provisions are not
unnecessarily invoked. Although the Court observed in the said judgment that the aforesaid
directions were “a one-time measure meant only to alleviate the current situation”, the
55
 Combatting Terrorism
spirit and principle behind the said observations should serve as guidelines to the Special
Courts while dealing applications of bail of persons accused of offences under the Act, for the
purposes of bail. Though we would like very much to incorporate the said classification in
sub-clauses (5) to (7) of clause 18, we find it difficult to do so in view of the difficulty in
incorporating the various ideas contained in the above judgment”.
4.3.7 Thus, the Law Commission did not suggest any modification to the somewhat stringent
conditions for release of the accused on bail, which were present in TADA. It is generally
known that persons accused of terrorist acts are not ordinary criminals and that witnesses are
afraid of deposing against them for fear of physical harm to them or members of their family.
Therefore, collecting evidence against them is both difficult and time consuming; if such
persons are to be treated on par with other criminals the course of justice will be seriously
jeorpardised. The Commission is of the view that there is no need to dilute the provisions of
bail as they existed in POTA. A closer scrutiny of the provisions would reveal that the test
whether there are grounds for believing that the accused is innocent, has to be applied only
when the prosecutor opposes the release of an accused on bail. Since there is a tendency for
investigation agencies and the prosecution to oppose bail, a responsibility may be cast on
both the investigation as well as the prosecution that bail applications should not be opposed
in a routine manner and there must be application of mind to ascertain whether detention of
an accused is required or not. This should be further fortified by an independent application
of mind by the Review Committee (paragraph 4.7) which should advise the prosecution
whether a bail application needs to be opposed or not and also on whether bail may be
granted under certain circumstances.
4.3.8 Recommendations
a. Regarding grant of bail, the law should provide that:
i. Notwithstanding anything contained in the Code, no person accused
of an offence punishable under this Act shall, if in custody, be
released on bail or on his own bond unless the Court gives the Public
Prosecutor an opportunity of being heard;
ii. Where the Public Prosecutor opposes the bail application of accused
to release on bail, no person accused of an offence punishable under
this Act or any rule made there under shall be released on bail until
the Court is satisfied that there are grounds for believing that the
accused is not guilty of committing such offence.
56
Dealing with Terrorism : Legal Framework
Provided that after the expiry of a period of one year from the date
of detention of the accused for an offence under this Act, the
provisions of sub-section (i) of this section shall apply.
iii. A Review Committee should review the case of all detenus periodically
and advise the prosecution about the release of the accused on bail
and the prosecution shall be bound by such advice.
4.4 Period of Detention (Remand) during Investigation
4.4.1 Section 167 of the CrPC provides that whenever any person is arrested and detained in
custody, and it appears that the investigation cannot be completed within a period of twenty-
four hours and there are grounds for believing that the FIR is well founded, the officer in-
charge of the police station shall produce the accused before the nearest Magistrate. On
production of such accused, it has been stipulated that such Magistrate may authorize the
detention of the accused in such custody for a term not exceeding fifteen days.
(a) the Magistrate may authorize the detention of the accused person, otherwise than in the
custody of the police, beyond the period of fifteen days, if he is satisfied that adequate
grounds exist for doing so, but no Magistrate shall authorize the detention of the accused
person in custody under this paragraph for a total period exceeding -
i. ninety days, where the investigation relates to an offence punishable with death,
imprisonment for life or imprisonment for a term of not less than ten years;
ii. sixty days, where the investigation relates to any other offence, and, on the expiry of
the said period of ninety days, or sixty days, as the case may be, the accused person
shall be released on bail if he is prepared to and does furnish bail, and every person
released on bail under this sub-section shall be deemed to be so released under the
provisions of Chapter XXXIII for the purposes of that chapter.
(b) No Magistrate shall authorize detention in any custody under this section unless the accused
is produced before him;
(c) No Magistrate of the second class, not specially empowered in this behalf by the High
Court, shall authorize detention in the custody of the police.
4.4.2 From the above provisions it is clear that a magistrate may order that an accused may
be kept in police custody for a maximum period of fifteen days. Beyond this period, the
accused may be kept in judicial custody for a maximum period of ninety days or sixty days
57
 Combatting Terrorism
spirit and principle behind the said observations should serve as guidelines to the Special
Courts while dealing applications of bail of persons accused of offences under the Act, for the
purposes of bail. Though we would like very much to incorporate the said classification in
sub-clauses (5) to (7) of clause 18, we find it difficult to do so in view of the difficulty in
incorporating the various ideas contained in the above judgment”.
4.3.7 Thus, the Law Commission did not suggest any modification to the somewhat stringent
conditions for release of the accused on bail, which were present in TADA. It is generally
known that persons accused of terrorist acts are not ordinary criminals and that witnesses are
afraid of deposing against them for fear of physical harm to them or members of their family.
Therefore, collecting evidence against them is both difficult and time consuming; if such
persons are to be treated on par with other criminals the course of justice will be seriously
jeorpardised. The Commission is of the view that there is no need to dilute the provisions of
bail as they existed in POTA. A closer scrutiny of the provisions would reveal that the test
whether there are grounds for believing that the accused is innocent, has to be applied only
when the prosecutor opposes the release of an accused on bail. Since there is a tendency for
investigation agencies and the prosecution to oppose bail, a responsibility may be cast on
both the investigation as well as the prosecution that bail applications should not be opposed
in a routine manner and there must be application of mind to ascertain whether detention of
an accused is required or not. This should be further fortified by an independent application
of mind by the Review Committee (paragraph 4.7) which should advise the prosecution
whether a bail application needs to be opposed or not and also on whether bail may be
granted under certain circumstances.
4.3.8 Recommendations
a. Regarding grant of bail, the law should provide that:
i. Notwithstanding anything contained in the Code, no person accused
of an offence punishable under this Act shall, if in custody, be
released on bail or on his own bond unless the Court gives the Public
Prosecutor an opportunity of being heard;
ii. Where the Public Prosecutor opposes the bail application of accused
to release on bail, no person accused of an offence punishable under
this Act or any rule made there under shall be released on bail until
the Court is satisfied that there are grounds for believing that the
accused is not guilty of committing such offence.
56
Dealing with Terrorism : Legal Framework
Provided that after the expiry of a period of one year from the date
of detention of the accused for an offence under this Act, the
provisions of sub-section (i) of this section shall apply.
iii. A Review Committee should review the case of all detenus periodically
and advise the prosecution about the release of the accused on bail
and the prosecution shall be bound by such advice.
4.4 Period of Detention (Remand) during Investigation
4.4.1 Section 167 of the CrPC provides that whenever any person is arrested and detained in
custody, and it appears that the investigation cannot be completed within a period of twenty-
four hours and there are grounds for believing that the FIR is well founded, the officer in-
charge of the police station shall produce the accused before the nearest Magistrate. On
production of such accused, it has been stipulated that such Magistrate may authorize the
detention of the accused in such custody for a term not exceeding fifteen days.
(a) the Magistrate may authorize the detention of the accused person, otherwise than in the
custody of the police, beyond the period of fifteen days, if he is satisfied that adequate
grounds exist for doing so, but no Magistrate shall authorize the detention of the accused
person in custody under this paragraph for a total period exceeding -
i. ninety days, where the investigation relates to an offence punishable with death,
imprisonment for life or imprisonment for a term of not less than ten years;
ii. sixty days, where the investigation relates to any other offence, and, on the expiry of
the said period of ninety days, or sixty days, as the case may be, the accused person
shall be released on bail if he is prepared to and does furnish bail, and every person
released on bail under this sub-section shall be deemed to be so released under the
provisions of Chapter XXXIII for the purposes of that chapter.
(b) No Magistrate shall authorize detention in any custody under this section unless the accused
is produced before him;
(c) No Magistrate of the second class, not specially empowered in this behalf by the High
Court, shall authorize detention in the custody of the police.
4.4.2 From the above provisions it is clear that a magistrate may order that an accused may
be kept in police custody for a maximum period of fifteen days. Beyond this period, the
accused may be kept in judicial custody for a maximum period of ninety days or sixty days
57
 Combatting Terrorism
depending upon the nature of the alleged crime. In TADA, the time periods of “fifteen days”,
“ninety days” and “sixty days” are replaced by “sixty days”, “one hundred eighty days” and
‘one hundred eighty days’ respectively. Thus, the period of remand under TADA was extended
beyond what has been stipulated in the CrPC. Similarly, Section 49 of POTA provided that
the references to “fifteen days”, ninety days and “sixty days”, wherever they occur, shall be
construed as references to “thirty days”, “ninety days” and “ninety days”, respectively. Provided
further that if it is not possible to complete the investigation within the said period of ninety
days, the Special Court shall extend the said period up to one hundred and eighty days, on
the report of the Public Prosecutor indicating the progress of the investigation and the specific
reasons for the detention of the accused beyond the said period of ninety days. After the
repeal of POTA, similar provisions have not been incorporated in the Unlawful Activities
Prevention Act.
4.4.3 Thus, the provisions of both TADA and POTA provided for extended periods of remand.
It has been argued that these provisions enabling extended periods of remand could result in
unnecessary detentions and therefore the provisions of CrPC should be adhered to. On the
other hand, the investigating agencies are of the view that these provisions of extended
remand are necessary in cases involving terrorist related offences as people rarely come forward
to depose because of fear of retribution. Also, there are complex crime networks sometimes
involving transnational links and therefore these may require longer period of remand for
successful investigation.
4.4.4 The Commission agrees that in terrorist related offences, witnesses are generally reluctant
to depose because of fear of reprisals and also that investigating such cases are usually more
complex and time consuming than ordinary crimes.. This could necessitate a more intense
and prolonged investigation by the police. Therefore the time limits specified under the
CrPC may not be adequate. At the same time the limits prescribed under TADA were longer
than required. POTA tried to achieve a fine balance as far as these time limits were concerned.
Therefore, the Commission feels that the provisions of POTA regarding remand and
completion of investigation may be restored and incorporated in the new law.
4.4.5 Recommendation
a. For terrorist and other related offences, it should be provided that Section
167 of the CrPC shall apply subject to the modification that in sub-section
(2), the references to “fifteen days”, “ninety days” and “sixty days”,
wherever they occur, shall be construed as references to “thirty days”,
“ninety days” and “ninety days” respectively.
58
Dealing with Terrorism : Legal Framework
4.5 Confession before a Police Officer
4.5.1 Protection against self incrimination is a basic principle of the Constitution and our
criminal justice system. This has been enshrined in Article 20 (3) which provides:
“No person accused of any offence shall be compelled to be a witness against himself ”.
4.5.2 Section 25 of the Indian Evidence Act, 1872 makes all confessions made to a police
officer inadmissible. It is felt that this provision was made because of the possibility of police
resorting to force and torture to extract confessions. Another argument in support of this
provision is that the police represents the State in the trial of an accused, and therefore, has a
vested interest in seeing that the accused is punished. Therefore, an evidence of confession
before the police is not taken to be objective and reliable. While this may hold true in
dealing with ordinary crimes, in dealing with terrorism the issue needs reconsideration.
4.5.3 TADA had made certain confessions to police officers as admissible, thus making a
departure from the ordinary criminal jurisprudence . Section 15 provides as follows:
“Certain confessions made to police officers to be taken into consideration:- (1) Notwithstanding
anything in the Code or in the Indian Evidence Act, 1872, but subject to the provisions of this
section, a confession made by a person before a police officer not lower in rank than a Superintendent
of Police and recorded by such police officer either in writing or on any mechanical device like
cassettes, tapes or sound tracks from out of which sounds or images can be reproduced, shall be
admissible in the trial of such person or co-accused, abettor or conspirator for an offence under this
Act or rules made thereunder:
Provided that co-accused, abettor or conspirator is charged and tried in the same case together with
the accused.
(2) The police officer shall, before recording any confession under sub-section(1), explain to the
person making it that he is not bound to make a confession and that, if he does so, it may be used
as evidence against him and such police officer shall not record any such confession unless upon
questioning the person making it, he has reason to believe that it is being made voluntarily”.
4.5.4 As stated earlier, the validity of Section 15 of TADA and other provisions were examined
and upheld by the Supreme Court in Kartar Singh vs State of Punjab. While upholding the
law, the Supreme Court laid down certain specific guidelines as safeguards to ensure that
confessions made before the police are not violative of the Constitutional provisions. These
guidelines are as follows:
(1) The confession should be recorded in a free atmosphere in the same language in which the
59
 Combatting Terrorism
depending upon the nature of the alleged crime. In TADA, the time periods of “fifteen days”,
“ninety days” and “sixty days” are replaced by “sixty days”, “one hundred eighty days” and
‘one hundred eighty days’ respectively. Thus, the period of remand under TADA was extended
beyond what has been stipulated in the CrPC. Similarly, Section 49 of POTA provided that
the references to “fifteen days”, ninety days and “sixty days”, wherever they occur, shall be
construed as references to “thirty days”, “ninety days” and “ninety days”, respectively. Provided
further that if it is not possible to complete the investigation within the said period of ninety
days, the Special Court shall extend the said period up to one hundred and eighty days, on
the report of the Public Prosecutor indicating the progress of the investigation and the specific
reasons for the detention of the accused beyond the said period of ninety days. After the
repeal of POTA, similar provisions have not been incorporated in the Unlawful Activities
Prevention Act.
4.4.3 Thus, the provisions of both TADA and POTA provided for extended periods of remand.
It has been argued that these provisions enabling extended periods of remand could result in
unnecessary detentions and therefore the provisions of CrPC should be adhered to. On the
other hand, the investigating agencies are of the view that these provisions of extended
remand are necessary in cases involving terrorist related offences as people rarely come forward
to depose because of fear of retribution. Also, there are complex crime networks sometimes
involving transnational links and therefore these may require longer period of remand for
successful investigation.
4.4.4 The Commission agrees that in terrorist related offences, witnesses are generally reluctant
to depose because of fear of reprisals and also that investigating such cases are usually more
complex and time consuming than ordinary crimes.. This could necessitate a more intense
and prolonged investigation by the police. Therefore the time limits specified under the
CrPC may not be adequate. At the same time the limits prescribed under TADA were longer
than required. POTA tried to achieve a fine balance as far as these time limits were concerned.
Therefore, the Commission feels that the provisions of POTA regarding remand and
completion of investigation may be restored and incorporated in the new law.
4.4.5 Recommendation
a. For terrorist and other related offences, it should be provided that Section
167 of the CrPC shall apply subject to the modification that in sub-section
(2), the references to “fifteen days”, “ninety days” and “sixty days”,
wherever they occur, shall be construed as references to “thirty days”,
“ninety days” and “ninety days” respectively.
58
Dealing with Terrorism : Legal Framework
4.5 Confession before a Police Officer
4.5.1 Protection against self incrimination is a basic principle of the Constitution and our
criminal justice system. This has been enshrined in Article 20 (3) which provides:
“No person accused of any offence shall be compelled to be a witness against himself ”.
4.5.2 Section 25 of the Indian Evidence Act, 1872 makes all confessions made to a police
officer inadmissible. It is felt that this provision was made because of the possibility of police
resorting to force and torture to extract confessions. Another argument in support of this
provision is that the police represents the State in the trial of an accused, and therefore, has a
vested interest in seeing that the accused is punished. Therefore, an evidence of confession
before the police is not taken to be objective and reliable. While this may hold true in
dealing with ordinary crimes, in dealing with terrorism the issue needs reconsideration.
4.5.3 TADA had made certain confessions to police officers as admissible, thus making a
departure from the ordinary criminal jurisprudence . Section 15 provides as follows:
“Certain confessions made to police officers to be taken into consideration:- (1) Notwithstanding
anything in the Code or in the Indian Evidence Act, 1872, but subject to the provisions of this
section, a confession made by a person before a police officer not lower in rank than a Superintendent
of Police and recorded by such police officer either in writing or on any mechanical device like
cassettes, tapes or sound tracks from out of which sounds or images can be reproduced, shall be
admissible in the trial of such person or co-accused, abettor or conspirator for an offence under this
Act or rules made thereunder:
Provided that co-accused, abettor or conspirator is charged and tried in the same case together with
the accused.
(2) The police officer shall, before recording any confession under sub-section(1), explain to the
person making it that he is not bound to make a confession and that, if he does so, it may be used
as evidence against him and such police officer shall not record any such confession unless upon
questioning the person making it, he has reason to believe that it is being made voluntarily”.
4.5.4 As stated earlier, the validity of Section 15 of TADA and other provisions were examined
and upheld by the Supreme Court in Kartar Singh vs State of Punjab. While upholding the
law, the Supreme Court laid down certain specific guidelines as safeguards to ensure that
confessions made before the police are not violative of the Constitutional provisions. These
guidelines are as follows:
(1) The confession should be recorded in a free atmosphere in the same language in which the
59
 Combatting Terrorism
person is examined and as narrated by him.
(2) The person from whom a confession has been recorded under Section 15 (1) of the Act,
should be produced before the Chief Judicial Magistrate to whom the confession is required
to be sent under Rule 15(5) along with the original statement of confession, written or
recorded on mechanical device without unreasonable delay.
(3) The Chief Metropolitan of the Chief Judicial Magistrate should scrupulously record the
statement, if any, made by the accused so produced and get his signature and in case of any
complaint of torture, the person should be directed to be produced for medical examination
before a Medical Officer not lower in rank than of an Assistant Civil Surgeon.
(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, no police
officer below the rank of an Assistant Commissioner of Police in the Metropolitan cities and
elsewhere of a Deputy Superintendent of Police or a police officer of equivalent rank, should
investigate any offence punishable under this Act of 1987.
This is necessary in view of the drastic provisions of this Act, more so when the Prevention
of Corruption Act, 1988 under Section 17 and the Immoral Traffic Prevention Act,
1956 under Section 13, authorise only a police officer of a specified rank to investigate the
offences under those specified Acts.
(5) This police officer if he is seeking the custody of any person for pre-indictment or pre-trial
interrogation from the judicial custody, must file an affidavit sworn by him explaining the
reason not only for such custody but also for the delay, if any, seeking the police custody.
(6) In case, the person, taken for interrogation, on receipt of the statutory warning that he is not
bound to make a confession and that if he does so, the said statement maybe used against
him as evidence, asserts his right to silence, the police officer must respect his right of assertion
without making any compulsion to give a statement of disclosure.
4.5.5 POTA also had provisions similar to TADA for dealing with the admissibility of
confessions made before the police. It also incorporated the salient features of the guidelines
laid down by the Supreme Court in the case Kartar Singh vs State of Punjab.
(1) Notwithstanding anything in the Code or in the Indian Evidence Act, 1872 (1 of 1872),
but subject to the provisions of this section, a confession made by a person before a police
officer not lower in rank than a Superintendent of Police and recorded by such police officer
either in writing or on any mechanical or electronic device like cassettes, tapes or sound
tracks from out of which sound or images can be reproduced, shall be admissible in the trial
60
Dealing with Terrorism : Legal Framework
of such person for an offence under this Act or the rules made thereunder.
(2) A police officer shall, before recording any confession made by a person under sub-section
(1), explain to such person in writing that he is not bound to make a confession and that if
he does so, it may be used against him:
Provided that where such person prefers to remain silent, the police officer shall not compel
or induce him to make any confession.
(3) The confession shall be recorded in an atmosphere free from threat or inducement and shall
be in the same language in which the person makes it.
(4) The person from whom a confession has been recorded under sub-section (1), shall be
produced before the Court of a Chief Metropolitan Magistrate or the Court of a Chief
Judicial Magistrate along with the original statement of confession, written or recorded on
mechanical or electronic device within forty-eight hours.
(5) The Chief Metropolitan Magistrate or the Chief Judicial Magistrate, shall, record the
statement, if any, made by the person so produced and get his signature or thumb impression
and if there is any complaint of torture, such person shall be directed to be produced for
medical examination before a Medical Officer not lower in rank than an Assistant Civil
Surgeon and thereafter, he shall be sent to judicial custody.
4.5.6 The issue of admissibility of confessions made before the police has been examined by
several Law Commissions. The Law Commission in its Forty-Eighth Report favoured the
admissibility of confessions made before the police. The Law Commission in its Sixty-Ninth
Report revisited this issue and reaffirmed the suggestion made in the Forty-Eighth Report.
Once again, the Law Commission examined the subject in great detail in its One-Eighty-
Fifth Report and recommended that confessions made before the police should not be admissible
under ordinary laws but could be admissible in case of grave offences like terrorism. The
Committee on Reforms of the Criminal Justice System, 2003 recommended that Section 25
of the Indian Evidence Act should be amended to render confessions made before a police
officer, admissible as evidence.
4.5.7 Those opposing the admissibility of confessions before the police have argued that if an
accused is willing to make a voluntary confession, then he could easily be produced before a
Magistrate rather than being produced before a senior police officer. It is also argued that
61
 Combatting Terrorism
person is examined and as narrated by him.
(2) The person from whom a confession has been recorded under Section 15 (1) of the Act,
should be produced before the Chief Judicial Magistrate to whom the confession is required
to be sent under Rule 15(5) along with the original statement of confession, written or
recorded on mechanical device without unreasonable delay.
(3) The Chief Metropolitan of the Chief Judicial Magistrate should scrupulously record the
statement, if any, made by the accused so produced and get his signature and in case of any
complaint of torture, the person should be directed to be produced for medical examination
before a Medical Officer not lower in rank than of an Assistant Civil Surgeon.
(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, no police
officer below the rank of an Assistant Commissioner of Police in the Metropolitan cities and
elsewhere of a Deputy Superintendent of Police or a police officer of equivalent rank, should
investigate any offence punishable under this Act of 1987.
This is necessary in view of the drastic provisions of this Act, more so when the Prevention
of Corruption Act, 1988 under Section 17 and the Immoral Traffic Prevention Act,
1956 under Section 13, authorise only a police officer of a specified rank to investigate the
offences under those specified Acts.
(5) This police officer if he is seeking the custody of any person for pre-indictment or pre-trial
interrogation from the judicial custody, must file an affidavit sworn by him explaining the
reason not only for such custody but also for the delay, if any, seeking the police custody.
(6) In case, the person, taken for interrogation, on receipt of the statutory warning that he is not
bound to make a confession and that if he does so, the said statement maybe used against
him as evidence, asserts his right to silence, the police officer must respect his right of assertion
without making any compulsion to give a statement of disclosure.
4.5.5 POTA also had provisions similar to TADA for dealing with the admissibility of
confessions made before the police. It also incorporated the salient features of the guidelines
laid down by the Supreme Court in the case Kartar Singh vs State of Punjab.
(1) Notwithstanding anything in the Code or in the Indian Evidence Act, 1872 (1 of 1872),
but subject to the provisions of this section, a confession made by a person before a police
officer not lower in rank than a Superintendent of Police and recorded by such police officer
either in writing or on any mechanical or electronic device like cassettes, tapes or sound
tracks from out of which sound or images can be reproduced, shall be admissible in the trial
60
Dealing with Terrorism : Legal Framework
of such person for an offence under this Act or the rules made thereunder.
(2) A police officer shall, before recording any confession made by a person under sub-section
(1), explain to such person in writing that he is not bound to make a confession and that if
he does so, it may be used against him:
Provided that where such person prefers to remain silent, the police officer shall not compel
or induce him to make any confession.
(3) The confession shall be recorded in an atmosphere free from threat or inducement and shall
be in the same language in which the person makes it.
(4) The person from whom a confession has been recorded under sub-section (1), shall be
produced before the Court of a Chief Metropolitan Magistrate or the Court of a Chief
Judicial Magistrate along with the original statement of confession, written or recorded on
mechanical or electronic device within forty-eight hours.
(5) The Chief Metropolitan Magistrate or the Chief Judicial Magistrate, shall, record the
statement, if any, made by the person so produced and get his signature or thumb impression
and if there is any complaint of torture, such person shall be directed to be produced for
medical examination before a Medical Officer not lower in rank than an Assistant Civil
Surgeon and thereafter, he shall be sent to judicial custody.
4.5.6 The issue of admissibility of confessions made before the police has been examined by
several Law Commissions. The Law Commission in its Forty-Eighth Report favoured the
admissibility of confessions made before the police. The Law Commission in its Sixty-Ninth
Report revisited this issue and reaffirmed the suggestion made in the Forty-Eighth Report.
Once again, the Law Commission examined the subject in great detail in its One-Eighty-
Fifth Report and recommended that confessions made before the police should not be admissible
under ordinary laws but could be admissible in case of grave offences like terrorism. The
Committee on Reforms of the Criminal Justice System, 2003 recommended that Section 25
of the Indian Evidence Act should be amended to render confessions made before a police
officer, admissible as evidence.
4.5.7 Those opposing the admissibility of confessions before the police have argued that if an
accused is willing to make a voluntary confession, then he could easily be produced before a
Magistrate rather than being produced before a senior police officer. It is also argued that
61
 Combatting Terrorism
police may resort to coercive methods in order to extract confessions. The amended UAPA,
therefore did not provide for making confessions before the police as admissible evidence.
4.5.8 The Commission has examined this issue in its report on ‘Public Order’ and has suggested
wide ranging reforms in the structure and functioning of the police. It has recommended
that the investigation agency should be supervised by an autonomous Board of Investigation.
This would ensure that the Investigation Agency is insulated against any extraneous influences
and would function in a professional manner. It has also recommended that the staff of the
investigation agency should be specially trained for their job with emphasis on collecting
evidence through use of forensic tools and eschewing coercive methods. Moreover, the
Commission has recommended the setting up of a District Complaints Authority and also a
State Police Complaints Authority which would effectively deal with cases of any misconduct
by the police. The Commission was of the view that with these elaborate safeguards there
should be no reason to continue to distrust the police with regard to admissibility of statements
made before them.
4.5.9 However, till such time that comprehensive police reforms are carried out, the Commission
is of the view that confessions and admissions whenever required may be made before the
judicial magistrate. There was provision in POTA which made certain confessions admissible
before the police. However it also stipulated that the person from whom a confession has been
recorded, shall be produced before the Court of a Chief Metropolitan Magistrate or the Court of a Chief
Judicial Magistrate along with the original statement of confession, written or recorded on mechanical or
electronic device within forty-eight hours. Under the circumstances it would be better if the accused
is produced directly before the judicial magistrate as criminal courts/magistrates are normally
available at the taluka levels.
4.5.10 Recommendation
a. Confession before the police should be made admissible as recommended
in the Report on Public Order. But this should be done only if
comprehensive police reforms as suggested by the Commission are carried
out. Till such time confessions should continue to be made before judicial
magistrates under Section 164 CrPC.
4.6 Presumptions under the Law
4.6.1 In all crimes the burden to establish the guilt of the accused is that of the prosecution.
In other words an accused is presumed to be innocent unless his guilt is established beyond
62
Dealing with Terrorism : Legal Framework
all reasonable doubt. However, TADA Section 21 specifies the circumstances wherein it
could be presumed that the accused is guilty:
21. Presumption as to offences under Section 3 – (1) In a prosecution for an offence under sub-
section (1) of Section 3, if it is proved –
a. that the arms or explosives or any other substances specified in Section 3 were recovered from
the possession of the accused and there is reason to believe that such arms or explosives or
other substances of similar nature, were used in the commission of such offence; or
b. that by the evidence of an expert the fingerprints of the accused were found at the site of the
offence or on anything including arms and vehicles used in connection with the commission
of such offence.
(2) In a prosecution for an offence under sub-section 3 of Section 3, if it is proved that the
accused rendered any financial assistance to a person accused of, or reasonably suspected of,
an offence under that section, the Designated Court shall presume, unless the contrary is
proved, that such person has committed the offence under that sub-section.
4.6.2 A similar provision was made in POTA.
Section 53. Presumption as to offences under section 3
(1) In a prosecution for an offence under sub-section (1) of section 3, if it is proved -
(a) that the arms or explosives or any other substances specified in section 4 were recovered
from the possession of the accused and there is reason to believe that such arms or
explosives or other substances of a similar nature, were used in the commission of
such offence; or
(b) that the finger-prints of the accused were found at the site of the offence or on
anything including arms and vehicles used in connection with the commission of
such offence, the Special Court shall draw adverse inference against the accused.
(2) In a prosecution for an offence under sub-section (3) of section 3, if it is proved that the
accused rendered any financial assistance to a person, having knowledge that such person is
accused of, or reasonably suspected of, an offence under that section, the Special Court shall
draw adverse inference against the accused.
63
 Combatting Terrorism
police may resort to coercive methods in order to extract confessions. The amended UAPA,
therefore did not provide for making confessions before the police as admissible evidence.
4.5.8 The Commission has examined this issue in its report on ‘Public Order’ and has suggested
wide ranging reforms in the structure and functioning of the police. It has recommended
that the investigation agency should be supervised by an autonomous Board of Investigation.
This would ensure that the Investigation Agency is insulated against any extraneous influences
and would function in a professional manner. It has also recommended that the staff of the
investigation agency should be specially trained for their job with emphasis on collecting
evidence through use of forensic tools and eschewing coercive methods. Moreover, the
Commission has recommended the setting up of a District Complaints Authority and also a
State Police Complaints Authority which would effectively deal with cases of any misconduct
by the police. The Commission was of the view that with these elaborate safeguards there
should be no reason to continue to distrust the police with regard to admissibility of statements
made before them.
4.5.9 However, till such time that comprehensive police reforms are carried out, the Commission
is of the view that confessions and admissions whenever required may be made before the
judicial magistrate. There was provision in POTA which made certain confessions admissible
before the police. However it also stipulated that the person from whom a confession has been
recorded, shall be produced before the Court of a Chief Metropolitan Magistrate or the Court of a Chief
Judicial Magistrate along with the original statement of confession, written or recorded on mechanical or
electronic device within forty-eight hours. Under the circumstances it would be better if the accused
is produced directly before the judicial magistrate as criminal courts/magistrates are normally
available at the taluka levels.
4.5.10 Recommendation
a. Confession before the police should be made admissible as recommended
in the Report on Public Order. But this should be done only if
comprehensive police reforms as suggested by the Commission are carried
out. Till such time confessions should continue to be made before judicial
magistrates under Section 164 CrPC.
4.6 Presumptions under the Law
4.6.1 In all crimes the burden to establish the guilt of the accused is that of the prosecution.
In other words an accused is presumed to be innocent unless his guilt is established beyond
62
Dealing with Terrorism : Legal Framework
all reasonable doubt. However, TADA Section 21 specifies the circumstances wherein it
could be presumed that the accused is guilty:
21. Presumption as to offences under Section 3 – (1) In a prosecution for an offence under sub-
section (1) of Section 3, if it is proved –
a. that the arms or explosives or any other substances specified in Section 3 were recovered from
the possession of the accused and there is reason to believe that such arms or explosives or
other substances of similar nature, were used in the commission of such offence; or
b. that by the evidence of an expert the fingerprints of the accused were found at the site of the
offence or on anything including arms and vehicles used in connection with the commission
of such offence.
(2) In a prosecution for an offence under sub-section 3 of Section 3, if it is proved that the
accused rendered any financial assistance to a person accused of, or reasonably suspected of,
an offence under that section, the Designated Court shall presume, unless the contrary is
proved, that such person has committed the offence under that sub-section.
4.6.2 A similar provision was made in POTA.
Section 53. Presumption as to offences under section 3
(1) In a prosecution for an offence under sub-section (1) of section 3, if it is proved -
(a) that the arms or explosives or any other substances specified in section 4 were recovered
from the possession of the accused and there is reason to believe that such arms or
explosives or other substances of a similar nature, were used in the commission of
such offence; or
(b) that the finger-prints of the accused were found at the site of the offence or on
anything including arms and vehicles used in connection with the commission of
such offence, the Special Court shall draw adverse inference against the accused.
(2) In a prosecution for an offence under sub-section (3) of section 3, if it is proved that the
accused rendered any financial assistance to a person, having knowledge that such person is
accused of, or reasonably suspected of, an offence under that section, the Special Court shall
draw adverse inference against the accused.
63
 Combatting Terrorism
4.6.3 This provision has not been included in the Unlawful Activities (Prevention) Amendment
Act. According to one school of thought, shifting the burden of proof to the accused is
violative of the basic principles of jurisprudence. Another viewpoint is that there are certain
facts which are only within the knowledge of the accused and establishing such facts by the
prosecution becomes difficult and the benefit generally passes on to the accused.
4.6.4 The Commission is of the view that because of the nature of the crime and the potential
it has to threaten the security and integrity of the country on the one hand and spread terror
among people on the other, it is necessary that the person who has indulged in the terrorist
act is not able to make use of the protection which is provided to an accused person under the
normal laws. In several cases, laws have provided for presumptions which may be drawn by
the court if certain facts are established. However, such presumptions are not conclusive
proof but can be rebutted by the accused by adducing evidence to the contrary. Both TADA
and POTA had provisions wherein the court was under an obligation to draw adverse inference
provided certain facts were established. The Commission feels that such presumptions should
be made a necessary part of the new anti-terror law.
4.6.5 Recommendation
a. The following legal provisions should be included regarding presumptions:
If it is proved –
i. that the arms or explosives or any other dangerous substance were
recovered from the possession of the accused and there is reason to
believe that such arms or explosives or other substances of similar
nature, were used in the commission of such offence; or that by the
evidence of an expert the fingerprints of the accused, or any other
definitive evidence were found at the site of the offence or on
anything including arms and vehicles used in connection with the
commission of such offence the Court shall draw adverse inference
against the accused.
ii. If it is proved that the accused rendered any financial assistance to
a person accused of, or reasonably suspected of, an offence of
terrorism, the Court shall draw adverse inference against the accused.
4.7 Review Committee
4.7.1 As stated earlier, laws dealing with extraordinary and complex crimes
64
Dealing with Terrorism : Legal Framework
like terrorism require extraordinary provisions which place special tools in the hands
of the concerned agencies to successfully investigate and prosecute such crimes.
Therefore, while the need for special provisions cannot be doubted, as stated earlier
there can be a propensity for their
misuse (as happened in the case of Box 4.3: Review Committees
POTA in some of the States).
“In order to ensure higher level of scrutiny and applicability
4.7.2 This underscores the need to of TADA Act, there must be a Screening Committee or a
Review Committee constituted by the Central Government
provide adequate safeguards and checks consisting of the Home Secretary, Law Secretary and other
and balances in the concerned Secretaries concerned of the various Departments to review
all the TADA cases instituted by the Central Government
legislation to prevent misuse/abuse of as well as to have a quarterly administrative review,
the stringent provisions contained in reviewing the States’ action in the application of the TADA
these Acts. It is also for this reason that provisions in the respective States, and the incidental
questions arising in relation thereto. Similarly, there must
the National Security Act which be a Screening or Review Committee at the State level
provides for preventive detention has a constituted by the respective States consisting of the Chief
provision for an Advisory Board as an Secretary, Home Secretary, Law Secretary, Director General
of Police (Law and Order) and other officials as the
institutional safeguard to prevent /stop respective Government may think it fit, to review the action
misuse of the detention provisions. Thus, of the enforcing authorities under the Act and screen the
cases registered under the provisions of the Act and decide
all cases of preventive detention have to the further course of action in every matter and so on.”
be placed before the Advisory Board and
the further detention or release of the Source: Kartar Singh v. State of Punjab, [(1994) 3 SCC
569: AIR 1995 SCC 1726]
detenue depends on the opinion of the
Advisory Board. COFEPOSA also has
similar provisions to check wrongful detention/misuse.
4.7.3 TADA did not have a safeguard mechanism similar to the one provided in the
National Security Act. While upholding the constitutional validity of TADA, the
Supreme Court suggested the setting up of a Screening or Review Committee. Several
States set up Screening Committees comprising senior officers of the Government.
4.7.4 However, POTA provided for constitution of review committees (Section 60).
(1) The Central Government and each State Government shall, whenever necessary, constitute
one or more Review Committees for the purposes of this Act.
(2) Every such Committee shall consist of a Chairperson and such other members not exceeding
three and possessing such qualifications as may be prescribed.
(3) A Chairperson of the Committee shall be a person who is, or has been, a Judge of a High
Court, who shall be appointed by the Central Government, or as the case may be, the State
65
 Combatting Terrorism
4.6.3 This provision has not been included in the Unlawful Activities (Prevention) Amendment
Act. According to one school of thought, shifting the burden of proof to the accused is
violative of the basic principles of jurisprudence. Another viewpoint is that there are certain
facts which are only within the knowledge of the accused and establishing such facts by the
prosecution becomes difficult and the benefit generally passes on to the accused.
4.6.4 The Commission is of the view that because of the nature of the crime and the potential
it has to threaten the security and integrity of the country on the one hand and spread terror
among people on the other, it is necessary that the person who has indulged in the terrorist
act is not able to make use of the protection which is provided to an accused person under the
normal laws. In several cases, laws have provided for presumptions which may be drawn by
the court if certain facts are established. However, such presumptions are not conclusive
proof but can be rebutted by the accused by adducing evidence to the contrary. Both TADA
and POTA had provisions wherein the court was under an obligation to draw adverse inference
provided certain facts were established. The Commission feels that such presumptions should
be made a necessary part of the new anti-terror law.
4.6.5 Recommendation
a. The following legal provisions should be included regarding presumptions:
If it is proved –
i. that the arms or explosives or any other dangerous substance were
recovered from the possession of the accused and there is reason to
believe that such arms or explosives or other substances of similar
nature, were used in the commission of such offence; or that by the
evidence of an expert the fingerprints of the accused, or any other
definitive evidence were found at the site of the offence or on
anything including arms and vehicles used in connection with the
commission of such offence the Court shall draw adverse inference
against the accused.
ii. If it is proved that the accused rendered any financial assistance to
a person accused of, or reasonably suspected of, an offence of
terrorism, the Court shall draw adverse inference against the accused.
4.7 Review Committee
4.7.1 As stated earlier, laws dealing with extraordinary and complex crimes
64
Dealing with Terrorism : Legal Framework
like terrorism require extraordinary provisions which place special tools in the hands
of the concerned agencies to successfully investigate and prosecute such crimes.
Therefore, while the need for special provisions cannot be doubted, as stated earlier
there can be a propensity for their
misuse (as happened in the case of Box 4.3: Review Committees
POTA in some of the States).
“In order to ensure higher level of scrutiny and applicability
4.7.2 This underscores the need to of TADA Act, there must be a Screening Committee or a
Review Committee constituted by the Central Government
provide adequate safeguards and checks consisting of the Home Secretary, Law Secretary and other
and balances in the concerned Secretaries concerned of the various Departments to review
all the TADA cases instituted by the Central Government
legislation to prevent misuse/abuse of as well as to have a quarterly administrative review,
the stringent provisions contained in reviewing the States’ action in the application of the TADA
these Acts. It is also for this reason that provisions in the respective States, and the incidental
questions arising in relation thereto. Similarly, there must
the National Security Act which be a Screening or Review Committee at the State level
provides for preventive detention has a constituted by the respective States consisting of the Chief
provision for an Advisory Board as an Secretary, Home Secretary, Law Secretary, Director General
of Police (Law and Order) and other officials as the
institutional safeguard to prevent /stop respective Government may think it fit, to review the action
misuse of the detention provisions. Thus, of the enforcing authorities under the Act and screen the
cases registered under the provisions of the Act and decide
all cases of preventive detention have to the further course of action in every matter and so on.”
be placed before the Advisory Board and
the further detention or release of the Source: Kartar Singh v. State of Punjab, [(1994) 3 SCC
569: AIR 1995 SCC 1726]
detenue depends on the opinion of the
Advisory Board. COFEPOSA also has
similar provisions to check wrongful detention/misuse.
4.7.3 TADA did not have a safeguard mechanism similar to the one provided in the
National Security Act. While upholding the constitutional validity of TADA, the
Supreme Court suggested the setting up of a Screening or Review Committee. Several
States set up Screening Committees comprising senior officers of the Government.
4.7.4 However, POTA provided for constitution of review committees (Section 60).
(1) The Central Government and each State Government shall, whenever necessary, constitute
one or more Review Committees for the purposes of this Act.
(2) Every such Committee shall consist of a Chairperson and such other members not exceeding
three and possessing such qualifications as may be prescribed.
(3) A Chairperson of the Committee shall be a person who is, or has been, a Judge of a High
Court, who shall be appointed by the Central Government, or as the case may be, the State
65
 Combatting Terrorism
Government, so however, that the concurrence of the Chief Justice of the High Court shall be
obtained in the case of a sitting Judge:
Provided that in the case of a Union Territory, the appointment of a person who is a Judge
of the High Court of a State shall be made as a Chairperson with the concurrence of the
Chief Justice of the concerned High Court.
4.7.5 From the above, it is evident that Section 60 did not define the powers of these review
committees. However, Section 19 gave review powers to these committees (Section 19 deals
with notification of terrorist organizations). Further, Section 46 empowered these Committees
to review the orders passed by competent authorities under Section 39 under POTA ( Section
39 dealt with authorization for interception of communications). Thus, these committees did
not have any powers to go into the investigation or prosecution of a case under POTA.
4.7.6 The Law Commission which recommended the ‘Prevention of Terrorism Bill, 2000’
proposed constitution of a review committee headed by the Chief Secretary, to review all
cases at the end of each quarter and give directions as appropriate.
4.7.7 In order to give more teeth to these committees POTA was amended by way of the
Prevention of Terrorism (Amendment) Act, 2003 and the following provisions made:
“(4) Without prejudice to the other provisions of this Act, any Review Committee constituted
under sub-section (1) shall, on an application by any aggrieved person, review whether
there is a prima facie for proceeding against the accused under this Act and issue directions
accordingly.
(5) Any direction issued under sub-section (4),-
(i) by the Review Committee constituted by the Central Government, shall be binding
on the Central Government, the State Government and the police officer investigating
the offence; and
(ii) by the Review Committee constituted by the State Government, shall be binding on
the State Government and the police officer investigating the offence.
(6) Where the reviews under sub-section (4) relating to the same offence under this Act, have
been made by a Review Committee constituted by the Central Government and a Review
Committee constituted by the State Government, under sub-section (1), any direction issued
by the Review Committee constituted by the Central Government shall prevail.
(7) Where any Review Committee constituted under sub-section (1) is of opinion that there is
66
Dealing with Terrorism : Legal Framework
no prima facie case for proceeding against the accused and issues directions under sub-
section (4), then, the proceedings pending against the accused shall be deemed to have been
withdrawn from the date of such direction.”.
4.7.8 After the repeal of POTA, the Unlawful Activities (Prevention) Amendment Act,
2004 provides for constitution of review committees headed by a person who is or has been a
Judge of the High Court. The role of the review committees is however limited to Section 36
which provides for notification/denotification of a terrorist organization.
4.7.9 The Commission is of the view that while stringent legal provisions regarding
investigation, bail and trial etc. are necessary for prosecuting persons charged with terrorist
acts, it is equally necessary to provide for an effective statutory institutional mechanism to
check any misuse / abuse of these provisions. The Commission, therefore, recommends that
the proposed new chapter in the NSA should provide for constitution of an independent
review committee before which all cases should be placed for review within 30 days of the
registration of a case. This Review Committee should carefully examine the evidence collected
and other relevant material and come to conclusion whether a prima facie case has been
made out against the accused. Such a review should be carried out every quarter till such
time that the charge-sheet is filed in the special court constituted to try cases of terrorism. If
the Review Committee concludes at any stage that no case exists against the accused, the
prosecution will be bound by such a decision. The Review Committee should be chaired by
the Home Secretary of the State with the Law Secretary and the Director General of Police as
its members.
4.7.10 Recommendation
a. A statutory Review Committee should be constituted to examine each case
registered, within 30 days of its registration. The Review Committee should
satisfy itself that a prima facie case has been made out by the investigation
agency. This Committee should review each case every quarter.
4.8 Witness Protection
4.8.1 The Commission has examined the issue of witness protection in its Report on Public
Order. The Supreme Court of India in its observations in the case of NHRC vs The State of
Gujarat (2003) regretted that “no law has yet been enacted for giving protection to witnesses”.
Later, the Court while transferring the Best Bakery case (2004) from the Gujarat High Court
to Mumbai also ordered protection to the witnesses in the matter. The Apex Court again
observed in Zahira Habibullah Sheikh and another vs State of Gujarat and Ors. (2006) 3
SCC 374 that:
67
 Combatting Terrorism
Government, so however, that the concurrence of the Chief Justice of the High Court shall be
obtained in the case of a sitting Judge:
Provided that in the case of a Union Territory, the appointment of a person who is a Judge
of the High Court of a State shall be made as a Chairperson with the concurrence of the
Chief Justice of the concerned High Court.
4.7.5 From the above, it is evident that Section 60 did not define the powers of these review
committees. However, Section 19 gave review powers to these committees (Section 19 deals
with notification of terrorist organizations). Further, Section 46 empowered these Committees
to review the orders passed by competent authorities under Section 39 under POTA ( Section
39 dealt with authorization for interception of communications). Thus, these committees did
not have any powers to go into the investigation or prosecution of a case under POTA.
4.7.6 The Law Commission which recommended the ‘Prevention of Terrorism Bill, 2000’
proposed constitution of a review committee headed by the Chief Secretary, to review all
cases at the end of each quarter and give directions as appropriate.
4.7.7 In order to give more teeth to these committees POTA was amended by way of the
Prevention of Terrorism (Amendment) Act, 2003 and the following provisions made:
“(4) Without prejudice to the other provisions of this Act, any Review Committee constituted
under sub-section (1) shall, on an application by any aggrieved person, review whether
there is a prima facie for proceeding against the accused under this Act and issue directions
accordingly.
(5) Any direction issued under sub-section (4),-
(i) by the Review Committee constituted by the Central Government, shall be binding
on the Central Government, the State Government and the police officer investigating
the offence; and
(ii) by the Review Committee constituted by the State Government, shall be binding on
the State Government and the police officer investigating the offence.
(6) Where the reviews under sub-section (4) relating to the same offence under this Act, have
been made by a Review Committee constituted by the Central Government and a Review
Committee constituted by the State Government, under sub-section (1), any direction issued
by the Review Committee constituted by the Central Government shall prevail.
(7) Where any Review Committee constituted under sub-section (1) is of opinion that there is
66
Dealing with Terrorism : Legal Framework
no prima facie case for proceeding against the accused and issues directions under sub-
section (4), then, the proceedings pending against the accused shall be deemed to have been
withdrawn from the date of such direction.”.
4.7.8 After the repeal of POTA, the Unlawful Activities (Prevention) Amendment Act,
2004 provides for constitution of review committees headed by a person who is or has been a
Judge of the High Court. The role of the review committees is however limited to Section 36
which provides for notification/denotification of a terrorist organization.
4.7.9 The Commission is of the view that while stringent legal provisions regarding
investigation, bail and trial etc. are necessary for prosecuting persons charged with terrorist
acts, it is equally necessary to provide for an effective statutory institutional mechanism to
check any misuse / abuse of these provisions. The Commission, therefore, recommends that
the proposed new chapter in the NSA should provide for constitution of an independent
review committee before which all cases should be placed for review within 30 days of the
registration of a case. This Review Committee should carefully examine the evidence collected
and other relevant material and come to conclusion whether a prima facie case has been
made out against the accused. Such a review should be carried out every quarter till such
time that the charge-sheet is filed in the special court constituted to try cases of terrorism. If
the Review Committee concludes at any stage that no case exists against the accused, the
prosecution will be bound by such a decision. The Review Committee should be chaired by
the Home Secretary of the State with the Law Secretary and the Director General of Police as
its members.
4.7.10 Recommendation
a. A statutory Review Committee should be constituted to examine each case
registered, within 30 days of its registration. The Review Committee should
satisfy itself that a prima facie case has been made out by the investigation
agency. This Committee should review each case every quarter.
4.8 Witness Protection
4.8.1 The Commission has examined the issue of witness protection in its Report on Public
Order. The Supreme Court of India in its observations in the case of NHRC vs The State of
Gujarat (2003) regretted that “no law has yet been enacted for giving protection to witnesses”.
Later, the Court while transferring the Best Bakery case (2004) from the Gujarat High Court
to Mumbai also ordered protection to the witnesses in the matter. The Apex Court again
observed in Zahira Habibullah Sheikh and another vs State of Gujarat and Ors. (2006) 3
SCC 374 that:
67
 Combatting Terrorism
“Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so
that ultimate truth is presented before the Court and justice triumphs and that the trial is not
reduced to a mockery.”
The need for legislation on the matter was again felt by the Court which stated:
“Legislative measures to emphasise prohibition against tampering with witness, victim or informant
have become the imminent and inevitable need of the day. Conducts which illegitimately affect the
presentation of evidence in proceedings before the Courts have to be seriously and sternly dealt
with. There should not be any undue anxiety to only protect the interest of the accused. That
would be unfair, as noted above, to the needs of the society.”
4.8.2 In its Report on Public Order, the Commission had observed that the problem with
implementing a US type witness protection program in India is that an individual Indian’s
identity is so inextricably linked with his social milieu and place of origin that it may be
practically impossible to extricate him from the same and relocate him with a fresh identity
somewhere else in the country. It is also extremely costly. Consequently, witness protection
programs of that type and scale may not be feasible except in a small number of very rare
cases. Nevertheless, there is need for a statutorily backed witness protection provision.
4.8.3 It needs to be mentioned here that TADA had a provision concerning protection of
witnesses (Section 16). Apart from providing for holding of proceedings in camera at the
discretion of the Designated Court, it also empowered the Designated Court to take appropriate
measures for keeping the identity and address of the witness secret, on its own or on an
application made by a witness or the Public Prosecutor. Such measures could, inter alia,
include holding of proceedings at a place to be decided by the Court, avoiding mention of
the names and addresses of the witnesses in orders/judgments or in records accessible to the
public, issuing of directions for not disclosing the identity of witnesses or not publishing the
proceedings of the Court. The draft Prevention of Terrorism Bill, 2000 as recommended by
the Law Commission also contained similar provisions (Clause 25) with the additions that
the Court should be satisfied that the life of the witness is in danger and reasons have to be
recorded in writing for such a decision. POTA, 2002 contained similar provisions. ULPAA,
2004 also has similar provisions.
4.8.4 Several measures are adopted to offer some protection to the witnesses and victims
during trial.
Use of screen while recording of statement of victim – This is done to ensure that the witness is not
overawed by the presence of the accused. Even the Law Commission in its 172nd Report
(2000) had recommended such a measure so that the victim or the witness is not confronted
with the accused. The Supreme Court of India in Sakshi vs Union of India, 2004 observed:
68
Dealing with Terrorism : Legal Framework
“The whole inquiry before a Court being to elicit the truth, it is absolutely necessary that the
victim or the witnesses are able to depose about the entire incident in a free atmosphere without any
embarrassment… The mere sight of the accused may induce an element of extreme fear in the
mind of the victim or the witnesses or can put them in a state of shock. In such a situation he or she
may not be able to give full details of the incident which may result in miscarriage of justice.
Therefore, a screen or some such arrangement can be made where the victim or witness do not have
to undergo the trauma of seeing the body or face of the accused”
Recording of statement through video conferencing – This is another method by which a victim may
avoid direct confrontation with the accused while adducing evidence.
Providing physical protection to the witnesses/victim: The Courts often direct the police to provide
adequate protection to the witnesses/victims.
4.8.5 Witness protection programmes in several developed countries are quite comprehensive
and include changing the “identity” of the witness. In a country like India where the bonds
of a person to the place where he/she has been living is very strong, giving a new identity to
a person could be difficult. But this option should be kept open and be exercised if the
witness requests and the court is convinced of the need for such a move.
4.8.6 Another way of protecting the identity of a witness may be by disallowing the accused
to see the witness or conceal the witness’s identity. However, this brings to the fore the issue
of the right of the accused to cross-examine the witness which would tend to disclose his
identity to the accused. The Law Commission had also examined this aspect and it was of
the view that this right could not be taken away. The Commission is of the view that in view
of the emerging threat to national security, the court may allow the identity of the witnesses
to be concealed and instead of cross examination by the accused, carry out such cross
examination itself in the rarest of rare cases.
4.8.7 Without going into the details of these measures the Commission would like to reiterate
its recommendations in its Report on ‘Public Order’ that “A statutory programmme for guaranteeing
anonymity of witnesses and for witness protection in specified types of cases, based on the best international
models should be adopted early.”
4.9 Special Courts
4.9.1 Section 9 of TADA provided for constitution of one or more Designated Courts for the
trial of notified cases. Section 17 of TADA provided that the trial of any offence under the
Act by such Designated Courts would have precedence over trial of other cases against the
accused in any other court and would be concluded in preference to the other cases. The Law
69
 Combatting Terrorism
“Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so
that ultimate truth is presented before the Court and justice triumphs and that the trial is not
reduced to a mockery.”
The need for legislation on the matter was again felt by the Court which stated:
“Legislative measures to emphasise prohibition against tampering with witness, victim or informant
have become the imminent and inevitable need of the day. Conducts which illegitimately affect the
presentation of evidence in proceedings before the Courts have to be seriously and sternly dealt
with. There should not be any undue anxiety to only protect the interest of the accused. That
would be unfair, as noted above, to the needs of the society.”
4.8.2 In its Report on Public Order, the Commission had observed that the problem with
implementing a US type witness protection program in India is that an individual Indian’s
identity is so inextricably linked with his social milieu and place of origin that it may be
practically impossible to extricate him from the same and relocate him with a fresh identity
somewhere else in the country. It is also extremely costly. Consequently, witness protection
programs of that type and scale may not be feasible except in a small number of very rare
cases. Nevertheless, there is need for a statutorily backed witness protection provision.
4.8.3 It needs to be mentioned here that TADA had a provision concerning protection of
witnesses (Section 16). Apart from providing for holding of proceedings in camera at the
discretion of the Designated Court, it also empowered the Designated Court to take appropriate
measures for keeping the identity and address of the witness secret, on its own or on an
application made by a witness or the Public Prosecutor. Such measures could, inter alia,
include holding of proceedings at a place to be decided by the Court, avoiding mention of
the names and addresses of the witnesses in orders/judgments or in records accessible to the
public, issuing of directions for not disclosing the identity of witnesses or not publishing the
proceedings of the Court. The draft Prevention of Terrorism Bill, 2000 as recommended by
the Law Commission also contained similar provisions (Clause 25) with the additions that
the Court should be satisfied that the life of the witness is in danger and reasons have to be
recorded in writing for such a decision. POTA, 2002 contained similar provisions. ULPAA,
2004 also has similar provisions.
4.8.4 Several measures are adopted to offer some protection to the witnesses and victims
during trial.
Use of screen while recording of statement of victim – This is done to ensure that the witness is not
overawed by the presence of the accused. Even the Law Commission in its 172nd Report
(2000) had recommended such a measure so that the victim or the witness is not confronted
with the accused. The Supreme Court of India in Sakshi vs Union of India, 2004 observed:
68
Dealing with Terrorism : Legal Framework
“The whole inquiry before a Court being to elicit the truth, it is absolutely necessary that the
victim or the witnesses are able to depose about the entire incident in a free atmosphere without any
embarrassment… The mere sight of the accused may induce an element of extreme fear in the
mind of the victim or the witnesses or can put them in a state of shock. In such a situation he or she
may not be able to give full details of the incident which may result in miscarriage of justice.
Therefore, a screen or some such arrangement can be made where the victim or witness do not have
to undergo the trauma of seeing the body or face of the accused”
Recording of statement through video conferencing – This is another method by which a victim may
avoid direct confrontation with the accused while adducing evidence.
Providing physical protection to the witnesses/victim: The Courts often direct the police to provide
adequate protection to the witnesses/victims.
4.8.5 Witness protection programmes in several developed countries are quite comprehensive
and include changing the “identity” of the witness. In a country like India where the bonds
of a person to the place where he/she has been living is very strong, giving a new identity to
a person could be difficult. But this option should be kept open and be exercised if the
witness requests and the court is convinced of the need for such a move.
4.8.6 Another way of protecting the identity of a witness may be by disallowing the accused
to see the witness or conceal the witness’s identity. However, this brings to the fore the issue
of the right of the accused to cross-examine the witness which would tend to disclose his
identity to the accused. The Law Commission had also examined this aspect and it was of
the view that this right could not be taken away. The Commission is of the view that in view
of the emerging threat to national security, the court may allow the identity of the witnesses
to be concealed and instead of cross examination by the accused, carry out such cross
examination itself in the rarest of rare cases.
4.8.7 Without going into the details of these measures the Commission would like to reiterate
its recommendations in its Report on ‘Public Order’ that “A statutory programmme for guaranteeing
anonymity of witnesses and for witness protection in specified types of cases, based on the best international
models should be adopted early.”
4.9 Special Courts
4.9.1 Section 9 of TADA provided for constitution of one or more Designated Courts for the
trial of notified cases. Section 17 of TADA provided that the trial of any offence under the
Act by such Designated Courts would have precedence over trial of other cases against the
accused in any other court and would be concluded in preference to the other cases. The Law
69
 Combatting Terrorism
Commission in its 173rd Report had also recommended the constitution of Special Courts for
trial of cases. Section 23 of POTA also provided for constitution of Special Courts for trial of
cases specified by notification. Further, Section 31 provided that trial of such cases would
have precedence over the trial of other cases against the accused in any other court. However,
the present law (ULPAA) does away with such Special Courts. Thus, trial of cases presently
takes place as in any other criminal case.
4.9.2 The Supreme Court of India had occasion to comment on the principle of speedy trial
associated with such Special Courts in the case of Kartar Singh v State of Punjab {(1994) 3
SCC 569: AIR 1995 SCC 1726}. As mentioned earlier, the Apex Court in the referred case
was examining the validity of various provisions of TADA, inter alia. In paragraph 83 of
their judgment, the Court mentioned that such constitution of Designated Courts etc. postulate
the concept of speedy trial. It mentioned that:
“85. The right to a speedy trial is not only an important safeguard to prevent undue and oppressive
incarceration, to minimise anxiety and concern accompanying the accusation and to limit the
possibility of impairing the ability of an accused to defend himself but also there is a societal
interest in providing a speedy trial. This right has been actuated in the recent past and the courts
have laid down a series of decisions opening up new vistas of fundamental rights. In fact, lot of
cases are coming before the courts for quashing of proceedings on the ground of inordinate and
undue delay stating that the invocation of this right even need not await formal indictment or
charge.
86. The concept of speedy trial is read into Article 21 as an essential part of the fundamental
right to life and liberty guaranteed and preserved under our Constitution. The right to speedy
trial begins with the actual restraint imposed by arrest and consequent incarceration and continues
at all stages, namely, the stage of investigation, inquiry, trial, appeal and revision so that any
possible prejudice that may result from impermissible and avoidable delay from the time of the
commission of the offence till it consummates into a finality, can be averted. In this context, it may
be noted that the constitutional guarantee of speedy trial is properly reflected in Section 309 of the
Code of Criminal Procedure.”
It further mentioned in paragraph 145 that:
“145. …The provisions prescribing special procedures aiming at speedy disposal of cases, departing
from the procedures prescribed under the ordinary procedural law are evidently for the reasons that
the prevalent ordinary procedural law was found to be inadequate and not sufficiently effective to
deal with the offenders indulging in terrorist and disruptive activities, secondly that the incensed
offenses are arising out of the activities of the terrorists and disruptionists which disrupt or are
70
Dealing with Terrorism : Legal Framework
intended to disrupt even the sovereignty and territorial integrity of India or which may bring
about or support any claim for the cession of any part of India or the secession of any part of India
from the Union, and which create terror and a sense of insecurity in the minds of the people.
Further, the Legislature being aware of the aggravated nature of the offences have brought this
drastic change in the procedure under this law so that the object of the legislation may not be
defeated and nullified.”
4.9.3 After discussing the arguments advanced for and against setting up of Special
Courts, the Court summed up in paragraph 368 that the “challenge on the validity of Section
9 of TADA on the ground of lack of legislative competence has no merit.” It went on to
conclude that:
“369. Keeping in view the doctrine of ‘speedy trial’ which is read into Article 21 as an essential
part of the fundamental right to life and liberty guaranteed and preserved under our Constitution
and which concept is manifested in the Special Courts Act, 1984 and TADA Act, 1987, the
Designated Courts should dispose of the cases pending before them without giving room for any
complaint of unreasonable delay. The Government concerned should ensure that no vacancy of
Presiding Officer of the Designated Court remains vacant and should take necessary steps to fill up
the vacancy as soon as any vacancy arises and also if necessitated, should constitute more Designated
Courts so that the under trials charged with the provisions of TADA do not languish in jail
indefinitely and the cases are disposed of expeditiously.”
4.9.4 The Commission is also of the view that the new law should include provisions for
constitution of Special Courts to expeditiously try terrorism related offences. These Special
Courts should be well equipped and fully staffed with personnel including presiding officers
and prosecutors who should be specially trained to handle terrorism related cases. Presiding
Officers and Prosecutors for such courts should be carefully selected on the basis of their
integrity, independence, professional competence and track record. Since terrorist incidents
are relatively few and far between and geographically dispersed, instead of setting up permanent
special court/courts in every State it would be more appropriate and useful to set up fast track
courts for trial of such offences. Other specific provisions related to such Special Courts may
also be incorporated.
4.9.5 Recommendation
a. Provisions for constitution of Special Fast Track Courts exclusively for
trial of terrorism related cases may be incorporated in the law on terrorism.
Other specific provisions related to such Special Courts may also be
incorporated. Such Courts may be set up as and when required.
71
 Combatting Terrorism
Commission in its 173rd Report had also recommended the constitution of Special Courts for
trial of cases. Section 23 of POTA also provided for constitution of Special Courts for trial of
cases specified by notification. Further, Section 31 provided that trial of such cases would
have precedence over the trial of other cases against the accused in any other court. However,
the present law (ULPAA) does away with such Special Courts. Thus, trial of cases presently
takes place as in any other criminal case.
4.9.2 The Supreme Court of India had occasion to comment on the principle of speedy trial
associated with such Special Courts in the case of Kartar Singh v State of Punjab {(1994) 3
SCC 569: AIR 1995 SCC 1726}. As mentioned earlier, the Apex Court in the referred case
was examining the validity of various provisions of TADA, inter alia. In paragraph 83 of
their judgment, the Court mentioned that such constitution of Designated Courts etc. postulate
the concept of speedy trial. It mentioned that:
“85. The right to a speedy trial is not only an important safeguard to prevent undue and oppressive
incarceration, to minimise anxiety and concern accompanying the accusation and to limit the
possibility of impairing the ability of an accused to defend himself but also there is a societal
interest in providing a speedy trial. This right has been actuated in the recent past and the courts
have laid down a series of decisions opening up new vistas of fundamental rights. In fact, lot of
cases are coming before the courts for quashing of proceedings on the ground of inordinate and
undue delay stating that the invocation of this right even need not await formal indictment or
charge.
86. The concept of speedy trial is read into Article 21 as an essential part of the fundamental
right to life and liberty guaranteed and preserved under our Constitution. The right to speedy
trial begins with the actual restraint imposed by arrest and consequent incarceration and continues
at all stages, namely, the stage of investigation, inquiry, trial, appeal and revision so that any
possible prejudice that may result from impermissible and avoidable delay from the time of the
commission of the offence till it consummates into a finality, can be averted. In this context, it may
be noted that the constitutional guarantee of speedy trial is properly reflected in Section 309 of the
Code of Criminal Procedure.”
It further mentioned in paragraph 145 that:
“145. …The provisions prescribing special procedures aiming at speedy disposal of cases, departing
from the procedures prescribed under the ordinary procedural law are evidently for the reasons that
the prevalent ordinary procedural law was found to be inadequate and not sufficiently effective to
deal with the offenders indulging in terrorist and disruptive activities, secondly that the incensed
offenses are arising out of the activities of the terrorists and disruptionists which disrupt or are
70
Dealing with Terrorism : Legal Framework
intended to disrupt even the sovereignty and territorial integrity of India or which may bring
about or support any claim for the cession of any part of India or the secession of any part of India
from the Union, and which create terror and a sense of insecurity in the minds of the people.
Further, the Legislature being aware of the aggravated nature of the offences have brought this
drastic change in the procedure under this law so that the object of the legislation may not be
defeated and nullified.”
4.9.3 After discussing the arguments advanced for and against setting up of Special
Courts, the Court summed up in paragraph 368 that the “challenge on the validity of Section
9 of TADA on the ground of lack of legislative competence has no merit.” It went on to
conclude that:
“369. Keeping in view the doctrine of ‘speedy trial’ which is read into Article 21 as an essential
part of the fundamental right to life and liberty guaranteed and preserved under our Constitution
and which concept is manifested in the Special Courts Act, 1984 and TADA Act, 1987, the
Designated Courts should dispose of the cases pending before them without giving room for any
complaint of unreasonable delay. The Government concerned should ensure that no vacancy of
Presiding Officer of the Designated Court remains vacant and should take necessary steps to fill up
the vacancy as soon as any vacancy arises and also if necessitated, should constitute more Designated
Courts so that the under trials charged with the provisions of TADA do not languish in jail
indefinitely and the cases are disposed of expeditiously.”
4.9.4 The Commission is also of the view that the new law should include provisions for
constitution of Special Courts to expeditiously try terrorism related offences. These Special
Courts should be well equipped and fully staffed with personnel including presiding officers
and prosecutors who should be specially trained to handle terrorism related cases. Presiding
Officers and Prosecutors for such courts should be carefully selected on the basis of their
integrity, independence, professional competence and track record. Since terrorist incidents
are relatively few and far between and geographically dispersed, instead of setting up permanent
special court/courts in every State it would be more appropriate and useful to set up fast track
courts for trial of such offences. Other specific provisions related to such Special Courts may
also be incorporated.
4.9.5 Recommendation
a. Provisions for constitution of Special Fast Track Courts exclusively for
trial of terrorism related cases may be incorporated in the law on terrorism.
Other specific provisions related to such Special Courts may also be
incorporated. Such Courts may be set up as and when required.
71
 Combatting Terrorism
4.10 Possession of Arms etc.
4.10.1 Section 5 of TADA had made possession of any arms and ammunition which were
specified in Columns 2 and 3 of Category I or Category III(a) of Schedule I to the Arms
Rules, 1962 or bombs, dynamite or other explosive substances unauthorisedly in a notified
area, an offence. The Law Commission in its 173rd Report had also retained this provision
(Clause 4). POTA retained and expanded the scope of this provision. Thus, Section 4 had
two separate paragraphs, (a) and (b) – while paragraph (a) applied to persons in unauthorized
possession of certain arms and ammunition specified in Arms Rules, 1962, in a notified area,
paragraph (b) on the other hand was applicable in case of persons in unauthorized possession
of not only bombs and dynamite but also hazardous explosive substances, weapons of mass
destruction or biological or chemical substances of warfare in any area, whether notified or
not. Under POTA, a person having unauthorised possession of these objects in both the cases
was guilty of terrorist act punishable with a term extending to life imprisonment. The State
Government was empowered to specify ‘notified areas’ by way of notification in the Official
Gazette.
4.10.2 Such a provision is not present in the ULPAA. The Commission is of the considered
view that the deterrent effect of having such a provision, which is applicable in some instances
to both notified and non-notified areas is substantial. Thus, the new legal provisions on
terrorism should include a provision to this effect.
4.10.3 Recommendation
a. Provision for penalizing unauthorized possession of certain specified arms
and ammunition in notified areas and unauthorized explosive substances,
weapons of mass destruction and biological or chemical substances of
warfare in notified as well as non-notified areas, may be incorporated in
the law on terrorism.
4.11 A Federal Agency to Investigate Terrorist Offences
4.11.1 The Commission has examined this issue in detail in its Report on ‘Public Order’ and
observed as follows:
“8.3.11 The Commission notes that all the offences proposed to be included in the category of so
called ‘Federal Crimes’ are already included as offences under the Indian penal laws.
However, as the gravity and complexity of such offences have increased, it would be necessary to
put in place appropriate procedures for dealing with such offences. This would necessitate the
enactment of a new law to deal with a category of offences which have inter-state and national
72
Dealing with Terrorism : Legal Framework
ramifications. This would also facilitate their investigation by a specialised State or Central
agency. The following offences may be included in the proposed new law:
• Organised Crime
• Terrorism
• Acts threatening national security
• Trafficking in arms and human beings
• Sedition
• Major crimes with inter-state ramifications
• Assassination (including attempts) of major public figures
• Serious economic offences
8.3.12 The Commission agrees with the approach suggested by the Padmanabhaiah Committee
that such crimes should be investigated by a specialised wing in the Central Bureau of
Investigation. Entry 8 of List I deals with ‘Central Bureau of Intelligence and Investigation’.
The Central Bureau of Investigation presently functions as a Special Police Establishment
under the Delhi Special Police Establishment Act, 1946 as amended from time to time.
8.3.13 Most of the offences mentioned in para 8.3.11 are of a relatively recent origin and the
state police with its restricted territorial jurisdiction and limited resources is likely to find it
difficult to investigate such crimes effectively. Even though “Police’ and ‘Public Order’ figure in
the State List in the Constitution, it is felt that this category of crimes with inter-state and
national ramifications would fall under the ‘residuary’ powers of the Union. The Commission
learns that the need for a separate law for CBI was considered on earlier occasions during
1986-89 and a draft Bill was prepared. The Commission is of the view that enactment of a
law using the ‘residuary powers’ and Entry 8, List I, to define the constitution of CBI, its
structure and jurisdiction is overdue and has to be enacted expeditiously. The changes made in
the Delhi Special Police Establishment Act in 2003 should also be incorporated in the new
law. Under the new law, the State Police as well as the CBI could be given concurrent jurisdiction
over investigation of all such crimes. The empowered committee recommended for monitoring
serious economic offences in this Commission’s Report on ‘Ethics in Governance’ (para 3.7.19)
may decide on the transfer of such cases to the CBI. Once the CBI takes over a case, investigation
by the State Police would cease but the latter will be required to provide assistance to the CBI
as may be needed. These offences should be tried by specially designated courts.
73
 Combatting Terrorism
4.10 Possession of Arms etc.
4.10.1 Section 5 of TADA had made possession of any arms and ammunition which were
specified in Columns 2 and 3 of Category I or Category III(a) of Schedule I to the Arms
Rules, 1962 or bombs, dynamite or other explosive substances unauthorisedly in a notified
area, an offence. The Law Commission in its 173rd Report had also retained this provision
(Clause 4). POTA retained and expanded the scope of this provision. Thus, Section 4 had
two separate paragraphs, (a) and (b) – while paragraph (a) applied to persons in unauthorized
possession of certain arms and ammunition specified in Arms Rules, 1962, in a notified area,
paragraph (b) on the other hand was applicable in case of persons in unauthorized possession
of not only bombs and dynamite but also hazardous explosive substances, weapons of mass
destruction or biological or chemical substances of warfare in any area, whether notified or
not. Under POTA, a person having unauthorised possession of these objects in both the cases
was guilty of terrorist act punishable with a term extending to life imprisonment. The State
Government was empowered to specify ‘notified areas’ by way of notification in the Official
Gazette.
4.10.2 Such a provision is not present in the ULPAA. The Commission is of the considered
view that the deterrent effect of having such a provision, which is applicable in some instances
to both notified and non-notified areas is substantial. Thus, the new legal provisions on
terrorism should include a provision to this effect.
4.10.3 Recommendation
a. Provision for penalizing unauthorized possession of certain specified arms
and ammunition in notified areas and unauthorized explosive substances,
weapons of mass destruction and biological or chemical substances of
warfare in notified as well as non-notified areas, may be incorporated in
the law on terrorism.
4.11 A Federal Agency to Investigate Terrorist Offences
4.11.1 The Commission has examined this issue in detail in its Report on ‘Public Order’ and
observed as follows:
“8.3.11 The Commission notes that all the offences proposed to be included in the category of so
called ‘Federal Crimes’ are already included as offences under the Indian penal laws.
However, as the gravity and complexity of such offences have increased, it would be necessary to
put in place appropriate procedures for dealing with such offences. This would necessitate the
enactment of a new law to deal with a category of offences which have inter-state and national
72
Dealing with Terrorism : Legal Framework
ramifications. This would also facilitate their investigation by a specialised State or Central
agency. The following offences may be included in the proposed new law:
• Organised Crime
• Terrorism
• Acts threatening national security
• Trafficking in arms and human beings
• Sedition
• Major crimes with inter-state ramifications
• Assassination (including attempts) of major public figures
• Serious economic offences
8.3.12 The Commission agrees with the approach suggested by the Padmanabhaiah Committee
that such crimes should be investigated by a specialised wing in the Central Bureau of
Investigation. Entry 8 of List I deals with ‘Central Bureau of Intelligence and Investigation’.
The Central Bureau of Investigation presently functions as a Special Police Establishment
under the Delhi Special Police Establishment Act, 1946 as amended from time to time.
8.3.13 Most of the offences mentioned in para 8.3.11 are of a relatively recent origin and the
state police with its restricted territorial jurisdiction and limited resources is likely to find it
difficult to investigate such crimes effectively. Even though “Police’ and ‘Public Order’ figure in
the State List in the Constitution, it is felt that this category of crimes with inter-state and
national ramifications would fall under the ‘residuary’ powers of the Union. The Commission
learns that the need for a separate law for CBI was considered on earlier occasions during
1986-89 and a draft Bill was prepared. The Commission is of the view that enactment of a
law using the ‘residuary powers’ and Entry 8, List I, to define the constitution of CBI, its
structure and jurisdiction is overdue and has to be enacted expeditiously. The changes made in
the Delhi Special Police Establishment Act in 2003 should also be incorporated in the new
law. Under the new law, the State Police as well as the CBI could be given concurrent jurisdiction
over investigation of all such crimes. The empowered committee recommended for monitoring
serious economic offences in this Commission’s Report on ‘Ethics in Governance’ (para 3.7.19)
may decide on the transfer of such cases to the CBI. Once the CBI takes over a case, investigation
by the State Police would cease but the latter will be required to provide assistance to the CBI
as may be needed. These offences should be tried by specially designated courts.
73
 Combatting Terrorism Dealing with Terrorism : Legal Framework

8.3.14 Recommendations: CBI. The Commission has already recommended creation of such a mechanism in its Report
on ‘Public Order’ as highlighted above.
a. There is need to re-examine certain offences which have inter-state or national
ramification and include them in a new law. The law should also prescribe the 4.11.3 The Commission is also of the view that mere setting up of new agencies and structures
procedure for investigation and trials of such offences. The following offences would not suffice unless such agency/agencies are staffed by personnel whose integrity and
may be included in this category: independence cannot be doubted, who are professionally competent and have developed the
1. Organised Crime (examined in paragraph 8.4) required expertise in investigation of terrorism related offences. The autonomy and independence
2. Terrorism of such agency should be ensured through a laid down procedure of appointment and assured
tenure of its personnel.
3. Acts threatening national security
4. Trafficking in arms and human beings 4.11.4 Recommendations
5. Sedition
a. The Commission would like to reiterate the recommendations made in
6. Major crimes with inter-state ramifications its Report on ‘Public Order’ (paragraph 8.3.14) on the creation of a
7. Assassination of (including attempts on) major public figures specialized Division in the CBI to investigate terror offences.
8. Serious economic offences
b. It should be ensured that this Division of the CBI is staffed by personnel
b. A new law should be enacted to govern the working of the CBI. This law should of proven integrity and who are professionally competent and have
also stipulate its jurisdiction including the power to investigate the new category developed the required expertise in investigation of terrorism related
of crimes. offences. The autonomy and independence of this agency may be ensured
through a laid down procedure of appointment and assured fixed tenure
c. The empowered committee Box 4.4: Federal Agency for Combatting Terrorism for its personnel.
recommended in the
16.9.16.1. The Committee is of the view that the internal
Commission’s Report on threats posed by divisive forces are equally important as external 4.12 The Commission has already recommended in paragraph 4.1.6.9 above that the legal
‘Ethics in Governance’ aggressions and that technology has facilitated the exponential provisions to deal with terrorism could be incorporated in a separate chapter in the National
escalation of the danger and threat levels posed by organized
(para 3.7.19) would crimes and terrorism. Therefore, they should be dealt with very
Security Act, 1980 (NSA). Accordingly, various recommendations made in this chapter on
decide on cases to be taken stringently and while doing so, prevention of incidents which different aspects of the legal framework to deal with terrorism may be incorporated in the
over by the CBI. threaten the security of our nation should be given prime thrust National Security Act.
and priority. In this regard, the Committee strongly feels that
the Central Government should be given adequate powers to
4.11.2 The Parliamentary Standing take prompt and effective action on the intelligence available
Committee for Personnel, Public to them. The Committee is of the opinion that in order to
ensure proper management and prevention of such incidents
Grievances and Law and Justice, in its which threaten the security of the nation, the CBI should be
Twenty Fourth Report, proposed envisaged as an enforcement agency also which would mean
reconstituting the CBI as Central that apart from investigation and prosecution, CBI should be
given mandate to ensure prevention of crimes. The Committee
Bureau of Intelligence and recommends that a separate Anti-Terrorism Division should be
Investigation, by creating a separate created in the CBI.
Anti-Terrorism Division (Box 4.4), and Source: http://164.100.47.5:8080/committeereports/reports/
a mechanism for transfer of investigation EnglishCommittees/Committee%20on%20Personnel,
%20PublicGrievances,%20Law%20and%20Justice/24th%
in major cases such as terrorism to the 20Report%20-%20Working%20of%20CBI.htm

74 75
 Combatting Terrorism Dealing with Terrorism : Legal Framework

8.3.14 Recommendations: CBI. The Commission has already recommended creation of such a mechanism in its Report
on ‘Public Order’ as highlighted above.
a. There is need to re-examine certain offences which have inter-state or national
ramification and include them in a new law. The law should also prescribe the 4.11.3 The Commission is also of the view that mere setting up of new agencies and structures
procedure for investigation and trials of such offences. The following offences would not suffice unless such agency/agencies are staffed by personnel whose integrity and
may be included in this category: independence cannot be doubted, who are professionally competent and have developed the
1. Organised Crime (examined in paragraph 8.4) required expertise in investigation of terrorism related offences. The autonomy and independence
2. Terrorism of such agency should be ensured through a laid down procedure of appointment and assured
tenure of its personnel.
3. Acts threatening national security
4. Trafficking in arms and human beings 4.11.4 Recommendations
5. Sedition
a. The Commission would like to reiterate the recommendations made in
6. Major crimes with inter-state ramifications its Report on ‘Public Order’ (paragraph 8.3.14) on the creation of a
7. Assassination of (including attempts on) major public figures specialized Division in the CBI to investigate terror offences.
8. Serious economic offences
b. It should be ensured that this Division of the CBI is staffed by personnel
b. A new law should be enacted to govern the working of the CBI. This law should of proven integrity and who are professionally competent and have
also stipulate its jurisdiction including the power to investigate the new category developed the required expertise in investigation of terrorism related
of crimes. offences. The autonomy and independence of this agency may be ensured
through a laid down procedure of appointment and assured fixed tenure
c. The empowered committee Box 4.4: Federal Agency for Combatting Terrorism for its personnel.
recommended in the
16.9.16.1. The Committee is of the view that the internal
Commission’s Report on threats posed by divisive forces are equally important as external 4.12 The Commission has already recommended in paragraph 4.1.6.9 above that the legal
‘Ethics in Governance’ aggressions and that technology has facilitated the exponential provisions to deal with terrorism could be incorporated in a separate chapter in the National
escalation of the danger and threat levels posed by organized
(para 3.7.19) would crimes and terrorism. Therefore, they should be dealt with very
Security Act, 1980 (NSA). Accordingly, various recommendations made in this chapter on
decide on cases to be taken stringently and while doing so, prevention of incidents which different aspects of the legal framework to deal with terrorism may be incorporated in the
over by the CBI. threaten the security of our nation should be given prime thrust National Security Act.
and priority. In this regard, the Committee strongly feels that
the Central Government should be given adequate powers to
4.11.2 The Parliamentary Standing take prompt and effective action on the intelligence available
Committee for Personnel, Public to them. The Committee is of the opinion that in order to
ensure proper management and prevention of such incidents
Grievances and Law and Justice, in its which threaten the security of the nation, the CBI should be
Twenty Fourth Report, proposed envisaged as an enforcement agency also which would mean
reconstituting the CBI as Central that apart from investigation and prosecution, CBI should be
given mandate to ensure prevention of crimes. The Committee
Bureau of Intelligence and recommends that a separate Anti-Terrorism Division should be
Investigation, by creating a separate created in the CBI.
Anti-Terrorism Division (Box 4.4), and Source: http://164.100.47.5:8080/committeereports/reports/
a mechanism for transfer of investigation EnglishCommittees/Committee%20on%20Personnel,
%20PublicGrievances,%20Law%20and%20Justice/24th%
in major cases such as terrorism to the 20Report%20-%20Working%20of%20CBI.htm

74 75

5 MEASURES AGAINST FINANCING OF TERRORISM
5.1 Introduction
5.1.1 Terrorist activities in most cases require substantial financial support. Such activities
generally involve the propagation of an ideology advocating militant action to achieve their
goals, increasing the number of devoted followers willing to carry out militant action in
furtherance of such goals, acquisition of and training in use of arms and explosives, planning
and execution of such militant action etc. All these necessarily require significant funding.
Apart from the proceeds of illegal operations, such funding could be sourced even from the
proceeds of lawful activities. Supporters of a militant ideology could well make financial
contributions to terrorist organizations from their known sources of income. Such contributions
could also be made to some non-profit or charitable institutions acting as a front for terrorist
organizations, knowingly or un-knowingly. Funds may also be provided to such front
organizations by laundering the proceeds of crime. In fact, terrorist organizations could also
finance their activities by either resorting to or working in concert with cartels involved in
drug trafficking, smuggling etc. – without having to resort to money-laundering per se.
Funding could also involve counterfeiting of currency. In all the scenarios mentioned above,
the end result is that money reaches the persons involved in carrying out terrorist acts. This
brings into focus the crucial issue of transfer of funds – both within and without the national
boundaries. International organized crime makes use of a wide range of methods and
networking to transfer funds with a view to launder the proceeds of crime. Many of these
methods are utilized by terrorist organizations in order to transfer funds required for financing
their activities. Apart from using the facilities provided by international trade, such
organizations also take recourse to bulk cash smuggling and use of informal channels of
transfer of money (like hawala). This is the reason that internationally, there has been a
tendency to merge the anti-money laundering and counter-terrorist finance (AML/CTF)
regimes. However, two features distinguish the activities related to money laundering
operations with those related to financing of terrorist activities, which have a bearing on the
nature of strategy to be adopted in a counter-terrorist finance regime. These are:
a. In case of money laundering, the activity begins with the generation of proceeds
from unlawful activities/crime and ends with their conversion into legal assets
76
Measures against Financing of Terrorism
(movable or immovable). On the other hand, financing of terrorist activities
could be from legal or illegal funds and it culminates when it reaches the
perpetrators of a terrorist act. Even if it involves money laundering activity in
between, the money trail has to continue to its final destination. This widens
the scope of investigation in cases involving terrorist finance.
b. In the case of money laundering, even if the proceeds of unlawful activities/
crime get ‘laundered’, enforcement authorities could undo the effect on the basis
of post-facto investigation. In case of terrorist finance, once the finance chain is
completed and an act of terrorism has taken place, post facto investigation is
limited to generating evidence leading to conviction of the perpetrators; loss of
life and damage to property and public confidence is already done.
It follows from the above that the law enforcement and investigation regime has to be wider
in scope while dealing with terrorist finance as compared to money laundering operations.
Further, in dealing with financing of terrorist activities, the emphasis has to be more on
obstructing such activities while in progress. The success and failure of a counter-terrorist
finance regime would thus depend on the manner in which these two elements are incorporated
in its strategy.
5.1.2 The main planks of a strategy to deal with the financial aspects of terrorist activities
tend to involve:
i. Asset recovery and obstruction powers
ii. Legal penalties against persons/organizations involved in financing terrorism
iii. Adoption of diligent customer identification programmes and standard record
keeping procedures by financial institutions/agencies
iv. Reporting of suspicious financial activity by individuals and institutions
v. Anti-money laundering measures
vi. Capacity building and coordination mechanisms between agencies involved
vii. International cooperation
To highlight the issues involved in dealing with financing of terrorism, the Commission
studied the measures taken in the US and UK in their fight against terrorism and the prevalent
set-up in India. The discussion, for the sake of convenience, is organized under two separate
77

5 MEASURES AGAINST FINANCING OF TERRORISM
5.1 Introduction
5.1.1 Terrorist activities in most cases require substantial financial support. Such activities
generally involve the propagation of an ideology advocating militant action to achieve their
goals, increasing the number of devoted followers willing to carry out militant action in
furtherance of such goals, acquisition of and training in use of arms and explosives, planning
and execution of such militant action etc. All these necessarily require significant funding.
Apart from the proceeds of illegal operations, such funding could be sourced even from the
proceeds of lawful activities. Supporters of a militant ideology could well make financial
contributions to terrorist organizations from their known sources of income. Such contributions
could also be made to some non-profit or charitable institutions acting as a front for terrorist
organizations, knowingly or un-knowingly. Funds may also be provided to such front
organizations by laundering the proceeds of crime. In fact, terrorist organizations could also
finance their activities by either resorting to or working in concert with cartels involved in
drug trafficking, smuggling etc. – without having to resort to money-laundering per se.
Funding could also involve counterfeiting of currency. In all the scenarios mentioned above,
the end result is that money reaches the persons involved in carrying out terrorist acts. This
brings into focus the crucial issue of transfer of funds – both within and without the national
boundaries. International organized crime makes use of a wide range of methods and
networking to transfer funds with a view to launder the proceeds of crime. Many of these
methods are utilized by terrorist organizations in order to transfer funds required for financing
their activities. Apart from using the facilities provided by international trade, such
organizations also take recourse to bulk cash smuggling and use of informal channels of
transfer of money (like hawala). This is the reason that internationally, there has been a
tendency to merge the anti-money laundering and counter-terrorist finance (AML/CTF)
regimes. However, two features distinguish the activities related to money laundering
operations with those related to financing of terrorist activities, which have a bearing on the
nature of strategy to be adopted in a counter-terrorist finance regime. These are:
a. In case of money laundering, the activity begins with the generation of proceeds
from unlawful activities/crime and ends with their conversion into legal assets
76
Measures against Financing of Terrorism
(movable or immovable). On the other hand, financing of terrorist activities
could be from legal or illegal funds and it culminates when it reaches the
perpetrators of a terrorist act. Even if it involves money laundering activity in
between, the money trail has to continue to its final destination. This widens
the scope of investigation in cases involving terrorist finance.
b. In the case of money laundering, even if the proceeds of unlawful activities/
crime get ‘laundered’, enforcement authorities could undo the effect on the basis
of post-facto investigation. In case of terrorist finance, once the finance chain is
completed and an act of terrorism has taken place, post facto investigation is
limited to generating evidence leading to conviction of the perpetrators; loss of
life and damage to property and public confidence is already done.
It follows from the above that the law enforcement and investigation regime has to be wider
in scope while dealing with terrorist finance as compared to money laundering operations.
Further, in dealing with financing of terrorist activities, the emphasis has to be more on
obstructing such activities while in progress. The success and failure of a counter-terrorist
finance regime would thus depend on the manner in which these two elements are incorporated
in its strategy.
5.1.2 The main planks of a strategy to deal with the financial aspects of terrorist activities
tend to involve:
i. Asset recovery and obstruction powers
ii. Legal penalties against persons/organizations involved in financing terrorism
iii. Adoption of diligent customer identification programmes and standard record
keeping procedures by financial institutions/agencies
iv. Reporting of suspicious financial activity by individuals and institutions
v. Anti-money laundering measures
vi. Capacity building and coordination mechanisms between agencies involved
vii. International cooperation
To highlight the issues involved in dealing with financing of terrorism, the Commission
studied the measures taken in the US and UK in their fight against terrorism and the prevalent
set-up in India. The discussion, for the sake of convenience, is organized under two separate
77
 Combatting Terrorism
heads, viz. ‘anti-money laundering measures and due diligence in the financial system’ and
‘measures to block the flow of funds for financing of terrorist activities’.
5.2 Anti Money-laundering Measures and Due Diligence in the Financial System
5.2.1. USA: In the USA, these measures could be categorized as those taken before the
events of September 11, 2001 and those undertaken thereafter.
Measures undertaken before September 11, 2001
5.2.1.1. Anti-money laundering provisions are included in ‘The Money-Laundering Control
Act of 1986’ and are contained in Sections 1956 and 1957 of Chapter 95 of Part I of Title 18
of the US Code. Section 1956 pertains to laundering of monetary instruments while Section
1957 pertains to engaging in monetary transactions in property derived from specified unlawful
activities. The following constitutes the offence of money-laundering under Section 1956:
(i) With regard to property involved in any financial transaction, the conduct or
attempt to conduct a financial transaction which involves the proceeds of specified
unlawful activity –
(a) with the intent to promote the carrying on of that activity; or
(b) with the intent to violate certain tax evasion provisions of the Internal
Revenue Code; or
(c) knowing that the transaction is designed to conceal or disguise the nature,
the location, the source, the ownership or the control of the proceeds of
such activity; or
(d) knowing that the transaction is designed to avoid a reporting requirement
under any law.
(ii) Transportation, transmission, transfer of a monetary instrument or funds or
attempt to undertake such activity from a place in the US to or through a place
outside the US or vice versa:
(a) with the intent to promote the carrying on of specified unlawful activity;
(b) knowing that such instrument or funds represent the proceeds of such
activity and knowing that such transportation, transmission or transfer is
78
Measures against Financing of Terrorism
designed either to conceal or disguise the nature, the location, the source,
the ownership or control of the proceeds of such activity;
(c) to avoid a reporting requirement under any law;
(iii) Conduct or attempt to conduct a financial transaction involving property
represented to be proceeds of specified unlawful activity or property used to
conduct or facilitate such activity with the intent:
(a) to promote the carrying on of specified unlawful activity;
(b) to conceal or disguise the nature, the location, the source, the ownership
or control of the proceeds of such activity;
(c) to avoid a reporting requirement under any law.
5.2.1.2 From the above, it is evident that the US law lays stress on financial transactions
involved in promoting specified unlawful activity; perpetrating tax evasion; concealing the
nature, location, source, ownership or control of proceeds of specified unlawful activity;
avoiding transaction reporting requirements under different laws; actual transportation,
transmission or transfer of instruments or funds from or to the United States as related to
specific unlawful activities and property transactions for the same purpose. Financial
transaction has been defined in Section 1956 to mean:
(A) a transaction which in any way or degree affects interstate or foreign
commerce –
(i) involving the movement of funds by wire or other means, or
(ii) involving one or more monetary instruments, or
(iii) involving the transfer of title to any real property, vehicle, vessel, or aircraft,
or
(B) a transaction involving the use of a financial institution which is engaged in, or
the activities of which affect, interstate or foreign commerce in any way or degree;
The predicate offences21 which are covered under this Act have a very wide span.
Measures undertaken after September 11, 2001:
79
21
‘predicate offence’ means any criminal offence by way of which the proceeds used in money-laundering were generated
 Combatting Terrorism
heads, viz. ‘anti-money laundering measures and due diligence in the financial system’ and
‘measures to block the flow of funds for financing of terrorist activities’.
5.2 Anti Money-laundering Measures and Due Diligence in the Financial System
5.2.1. USA: In the USA, these measures could be categorized as those taken before the
events of September 11, 2001 and those undertaken thereafter.
Measures undertaken before September 11, 2001
5.2.1.1. Anti-money laundering provisions are included in ‘The Money-Laundering Control
Act of 1986’ and are contained in Sections 1956 and 1957 of Chapter 95 of Part I of Title 18
of the US Code. Section 1956 pertains to laundering of monetary instruments while Section
1957 pertains to engaging in monetary transactions in property derived from specified unlawful
activities. The following constitutes the offence of money-laundering under Section 1956:
(i) With regard to property involved in any financial transaction, the conduct or
attempt to conduct a financial transaction which involves the proceeds of specified
unlawful activity –
(a) with the intent to promote the carrying on of that activity; or
(b) with the intent to violate certain tax evasion provisions of the Internal
Revenue Code; or
(c) knowing that the transaction is designed to conceal or disguise the nature,
the location, the source, the ownership or the control of the proceeds of
such activity; or
(d) knowing that the transaction is designed to avoid a reporting requirement
under any law.
(ii) Transportation, transmission, transfer of a monetary instrument or funds or
attempt to undertake such activity from a place in the US to or through a place
outside the US or vice versa:
(a) with the intent to promote the carrying on of specified unlawful activity;
(b) knowing that such instrument or funds represent the proceeds of such
activity and knowing that such transportation, transmission or transfer is
78
Measures against Financing of Terrorism
designed either to conceal or disguise the nature, the location, the source,
the ownership or control of the proceeds of such activity;
(c) to avoid a reporting requirement under any law;
(iii) Conduct or attempt to conduct a financial transaction involving property
represented to be proceeds of specified unlawful activity or property used to
conduct or facilitate such activity with the intent:
(a) to promote the carrying on of specified unlawful activity;
(b) to conceal or disguise the nature, the location, the source, the ownership
or control of the proceeds of such activity;
(c) to avoid a reporting requirement under any law.
5.2.1.2 From the above, it is evident that the US law lays stress on financial transactions
involved in promoting specified unlawful activity; perpetrating tax evasion; concealing the
nature, location, source, ownership or control of proceeds of specified unlawful activity;
avoiding transaction reporting requirements under different laws; actual transportation,
transmission or transfer of instruments or funds from or to the United States as related to
specific unlawful activities and property transactions for the same purpose. Financial
transaction has been defined in Section 1956 to mean:
(A) a transaction which in any way or degree affects interstate or foreign
commerce –
(i) involving the movement of funds by wire or other means, or
(ii) involving one or more monetary instruments, or
(iii) involving the transfer of title to any real property, vehicle, vessel, or aircraft,
or
(B) a transaction involving the use of a financial institution which is engaged in, or
the activities of which affect, interstate or foreign commerce in any way or degree;
The predicate offences21 which are covered under this Act have a very wide span.
Measures undertaken after September 11, 2001:
79
21
‘predicate offence’ means any criminal offence by way of which the proceeds used in money-laundering were generated
 Combatting Terrorism
5.2.1.3 The ‘Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism (USA PATRIOT) Act of 2001’: This significant piece of legislation
contains a number of provisions related to financial transactions and terrorist activities. Some
of these are being described below:
i. Interception of wire, oral and electronic communications relating to terrorism
(Section 201): Law enforcement authorities in the US may intercept wire, oral or
electronic communications under a judicially supervised procedure. However,
this authority is only available in connection with the investigations of specifically
designated serious crimes. Section 201, inter alia, adds to the list the offences of
(a) engaging in financial transactions with the government of a country which
is designated as country supporting international terrorism (18 USC 2332d)
and (b) providing material support (including any property, tangible or intangible,
or service, including currency or monetary instruments or financial securities, or
financial services) to terrorists (18 USC 2339A) or terrorist organizations (18
USC 2339B).22
ii. International Money Laundering Abatement and Financial Anti-terrorist Act
(Title III): Title III of the USA PATRIOT Act emerged out of certain congressional
findings. Briefly, these were (Section 302):
1. money laundering provides the fuel that permits transnational criminal
enterprises to conduct and expand their operations,
2. money laundering and the defects in financial transparency are critical to
the financing of global terrorism,
3. legitimate financial mechanisms and banking relationships are subverted
by the money launderers to move the proceeds of crime,
4. certain national jurisdictions offer ‘offshore’ banking and related facilities
which are designed to provide anonymity. Coupled with weak supervisory
and enforcement regimes, these are suited to the movement of funds related
to narcotics trafficking, terrorism, etc. They also pose challenges to tracking
the trail of money.
5.2.1.4 The main provisions of Title III are as follows23:
(i) Special measures targeted towards international primary money laundering issues
(Section 311): The Secretary of Treasury is authorized to require domestic financial
80
22
This has been made permanent under the USA PATRIOT Improvement and Reauthorization Act, 2005 {Section 102(a)}
23
Source: USA PATRIOT ACT 2001; aid has been taken of ‘Terrorism: Section by Section Analysis of the USA PATRIOT Act, CRS Report for the Congress
Measures against Financing of Terrorism
institutions and agencies to take ‘special measures’ upon finding that (a) a
jurisdiction outside the US, or (b) a financial institution outside the US, or (c) a
class of transactions involving a jurisdiction outside the US, or (d) a type of
account is of primary money laundering concern. Such ‘special measures’ involve
(1) recordkeeping and reporting of certain transactions, including format of such
records and reports, information regarding identity and addresses of participants
and originator of funds, legal capacity of participants, identity of beneficial
owner of funds etc. (2) obtaining and retaining beneficial ownership of any
account of a foreign person or his representative (3) identification of customers
and obtaining information comparable to domestic institutions in case foreign
financial institutions which are permitted to use payable-through accounts in
the US or in case of such institutions who have correspondent accounts in the
US. (4) prohibition or attaching conditions to opening or maintaining of
correspondent accounts. In arriving at such finding, the Secretary of the Treasury
shall consult with the Secretary of State and the Attorney General.
(ii) Section 312 requires every financial institution with a private banking or
correspondent account for a foreign person or bank to establish controls to detect
and report money laundering.
(iii) Section 313 prohibits US banks, foreign banks and branches operating in the
US and others from maintaining correspondent accounts for foreign shell banks.
(iv) Section 315 includes bribery of a public official etc. to the list of offences under
foreign law, the proceeds of which may form a federal money laundering
prosecution.
(v) Section 317 provides jurisdiction over foreign persons, including financial
institutions under 18 USC 1956 and 1957, provided there is a valid service of
process and the offence involves a transaction in the US or the property has been
the subject of a forfeiture judgment or a criminal sentence.
(vi) Section 318 amends 18 USC 1956 to cover laundering money through a bank.
(vii) Section 326 requires minimum standards to be prescribed for financial institutions
to identify their customers.
(viii) Section 352 requires each financial institution to develop an anti-money
laundering programme. Sections 351, 356, 359 extend the Suspicious Activity
Reporting Regime.
81
 Combatting Terrorism
5.2.1.3 The ‘Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism (USA PATRIOT) Act of 2001’: This significant piece of legislation
contains a number of provisions related to financial transactions and terrorist activities. Some
of these are being described below:
i. Interception of wire, oral and electronic communications relating to terrorism
(Section 201): Law enforcement authorities in the US may intercept wire, oral or
electronic communications under a judicially supervised procedure. However,
this authority is only available in connection with the investigations of specifically
designated serious crimes. Section 201, inter alia, adds to the list the offences of
(a) engaging in financial transactions with the government of a country which
is designated as country supporting international terrorism (18 USC 2332d)
and (b) providing material support (including any property, tangible or intangible,
or service, including currency or monetary instruments or financial securities, or
financial services) to terrorists (18 USC 2339A) or terrorist organizations (18
USC 2339B).22
ii. International Money Laundering Abatement and Financial Anti-terrorist Act
(Title III): Title III of the USA PATRIOT Act emerged out of certain congressional
findings. Briefly, these were (Section 302):
1. money laundering provides the fuel that permits transnational criminal
enterprises to conduct and expand their operations,
2. money laundering and the defects in financial transparency are critical to
the financing of global terrorism,
3. legitimate financial mechanisms and banking relationships are subverted
by the money launderers to move the proceeds of crime,
4. certain national jurisdictions offer ‘offshore’ banking and related facilities
which are designed to provide anonymity. Coupled with weak supervisory
and enforcement regimes, these are suited to the movement of funds related
to narcotics trafficking, terrorism, etc. They also pose challenges to tracking
the trail of money.
5.2.1.4 The main provisions of Title III are as follows23:
(i) Special measures targeted towards international primary money laundering issues
(Section 311): The Secretary of Treasury is authorized to require domestic financial
80
22
This has been made permanent under the USA PATRIOT Improvement and Reauthorization Act, 2005 {Section 102(a)}
23
Source: USA PATRIOT ACT 2001; aid has been taken of ‘Terrorism: Section by Section Analysis of the USA PATRIOT Act, CRS Report for the Congress
Measures against Financing of Terrorism
institutions and agencies to take ‘special measures’ upon finding that (a) a
jurisdiction outside the US, or (b) a financial institution outside the US, or (c) a
class of transactions involving a jurisdiction outside the US, or (d) a type of
account is of primary money laundering concern. Such ‘special measures’ involve
(1) recordkeeping and reporting of certain transactions, including format of such
records and reports, information regarding identity and addresses of participants
and originator of funds, legal capacity of participants, identity of beneficial
owner of funds etc. (2) obtaining and retaining beneficial ownership of any
account of a foreign person or his representative (3) identification of customers
and obtaining information comparable to domestic institutions in case foreign
financial institutions which are permitted to use payable-through accounts in
the US or in case of such institutions who have correspondent accounts in the
US. (4) prohibition or attaching conditions to opening or maintaining of
correspondent accounts. In arriving at such finding, the Secretary of the Treasury
shall consult with the Secretary of State and the Attorney General.
(ii) Section 312 requires every financial institution with a private banking or
correspondent account for a foreign person or bank to establish controls to detect
and report money laundering.
(iii) Section 313 prohibits US banks, foreign banks and branches operating in the
US and others from maintaining correspondent accounts for foreign shell banks.
(iv) Section 315 includes bribery of a public official etc. to the list of offences under
foreign law, the proceeds of which may form a federal money laundering
prosecution.
(v) Section 317 provides jurisdiction over foreign persons, including financial
institutions under 18 USC 1956 and 1957, provided there is a valid service of
process and the offence involves a transaction in the US or the property has been
the subject of a forfeiture judgment or a criminal sentence.
(vi) Section 318 amends 18 USC 1956 to cover laundering money through a bank.
(vii) Section 326 requires minimum standards to be prescribed for financial institutions
to identify their customers.
(viii) Section 352 requires each financial institution to develop an anti-money
laundering programme. Sections 351, 356, 359 extend the Suspicious Activity
Reporting Regime.
81
 Combatting Terrorism Measures against Financing of Terrorism

(ix) Section 361 institutionalises the Financial Crimes Enforcement Network Authority (DEA) are the main US agencies involved in the fight against money laundering.
(FinCEN) as a statutory bureau in the Treasury Department. The following Table gives details of results achieved by them in the years 2003 to 2005:

5.2.1.5 Thus, the USA PATRIOT Act, 2001 is basically an exercise in capacity building in Table : 5.1 Anti-Money Laundering Statistics (USA)
order to create an information-rich environment enabling the law enforcement agencies to Agency Action FY 2003 FY 2004 FY 2005
effectively trace and obstruct terrorist finance and protect the financial systems from money FBI Arrests 342 353 253
laundering and terrorist abuse. Thus, the focus is now on protecting the financial system Convictions 512 459 440
from abuse through customer identification programmes, maintenance of records by financial DEA (Office of Investigations 236 253 319
institutions and reporting of suspicious transactions to FinCEN. Financial Operations) Arrests 76 112 156
5.2.1.6 Section 405 of Title IV of USA PATRIOT Improvement and Reauthorization Act, IRS-CI Investigations initiated 1590 1789 1639
2005 makes money laundering through hawalas an offence by incorporating it into Section Indictments/Informations 1041 1304 1147
1956 of 18 USC. Sentenced 667 687 782
ICE (under 18 USC Arrests 314 421 340
Additional provisions for dealing with money laundering 1956 and 1957) Indictments 360 499 378
ICE (bulk cash Arrests 87 58 32
5.2.1.7 Presently, apart from the reporting regime administered by FinCEN, information on smuggling under Indictments 124 133 75
financial transactions is also provided by financial institutions, their regulators and certain 31 USC 5332) Convictions 125 142 101
offices within the Department of Treasury to the Internal Revenue Service, Bureau of Customs Source : Appendix B: Anti-Money Laundering Statistics; 2007 National Money Laundering Strategy, USA
and Border Protection, Bureau of Immigration and Customs Enforcement, US Secret Service,
FBI, Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and the Drug Enforcement 5.2.2 UK: The United Kingdom has also put in place a sound anti-money laundering system.
Administration (DEA), which take action as per their own codes and charters.24 In case of This includes25:
investigations related to money laundering, the agencies authorized to investigate into
violations of Sections 1956 and 1957 as described above, are such components of (a) i. legal provisions outlawing money laundering
Department of Justice as the Attorney General may direct, (b) Department of the Treasury as ii. application of financial safeguards by industry
the Secretary of the Treasury may direct and (c) with respect to offences over which the
United States Postal Service has jurisdiction, the Postal Service. The authority has to be Some of the measures taken are outlined below:
exercised on the basis of an agreement between the three offices. Further, offences related to
pollution may be investigated by the Department of Justice and the National Enforcement 5.2.2.1 Legal provisions outlawing money laundering
Investigations Center of the Environment Protection Agency [Sections 1956(e) and 1957
(e)]. This list of authorized agencies has now been expanded vide Section 403 of Title IV of 5.2.2.1.1 The Proceeds of Crime Act 2002 (POCA) provides for a single set of money
USA PATRIOT Improvement and Reauthorization Act, 2005 by inserting the phrase ‘with laundering offences, applicable throughout the UK to proceeds of all crimes. Thus, law
respect to offenses over which the Department of Homeland Security has jurisdiction, by enforcement agencies no longer need to show that illicit money has been derived from one
such components of the Department of Homeland Security as the Secretary of Homeland particular kind of crime.26 Some of the offences mentioned in Part 7 of POCA which deals
Security may direct’ and consequently, the aforesaid agreement is now to be entered into by with money laundering, are as follows:
four parties.
Section 327: Concealing etc.
5.2.1.8 The Federal Bureau of Investigation (FBI), Immigration and Customs Enforcement
(1) A person commits an offence if he –
(ICE), Internal Revenue Service-Criminal Investigation (IRS-CI) and Drug Enforcement

82 83
24 25
Source: Terrorist Financing: US Agency Efforts and Inter-Agency Coordination; August 3, 2005; CRS Report for Congress ‘The Financial Challenge to Crime and Terrorism’; HM Treasury, February, 2007
26
ibid
 Combatting Terrorism Measures against Financing of Terrorism

(ix) Section 361 institutionalises the Financial Crimes Enforcement Network Authority (DEA) are the main US agencies involved in the fight against money laundering.
(FinCEN) as a statutory bureau in the Treasury Department. The following Table gives details of results achieved by them in the years 2003 to 2005:

5.2.1.5 Thus, the USA PATRIOT Act, 2001 is basically an exercise in capacity building in Table : 5.1 Anti-Money Laundering Statistics (USA)
order to create an information-rich environment enabling the law enforcement agencies to Agency Action FY 2003 FY 2004 FY 2005
effectively trace and obstruct terrorist finance and protect the financial systems from money FBI Arrests 342 353 253
laundering and terrorist abuse. Thus, the focus is now on protecting the financial system Convictions 512 459 440
from abuse through customer identification programmes, maintenance of records by financial DEA (Office of Investigations 236 253 319
institutions and reporting of suspicious transactions to FinCEN. Financial Operations) Arrests 76 112 156
5.2.1.6 Section 405 of Title IV of USA PATRIOT Improvement and Reauthorization Act, IRS-CI Investigations initiated 1590 1789 1639
2005 makes money laundering through hawalas an offence by incorporating it into Section Indictments/Informations 1041 1304 1147
1956 of 18 USC. Sentenced 667 687 782
ICE (under 18 USC Arrests 314 421 340
Additional provisions for dealing with money laundering 1956 and 1957) Indictments 360 499 378
ICE (bulk cash Arrests 87 58 32
5.2.1.7 Presently, apart from the reporting regime administered by FinCEN, information on smuggling under Indictments 124 133 75
financial transactions is also provided by financial institutions, their regulators and certain 31 USC 5332) Convictions 125 142 101
offices within the Department of Treasury to the Internal Revenue Service, Bureau of Customs Source : Appendix B: Anti-Money Laundering Statistics; 2007 National Money Laundering Strategy, USA
and Border Protection, Bureau of Immigration and Customs Enforcement, US Secret Service,
FBI, Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and the Drug Enforcement 5.2.2 UK: The United Kingdom has also put in place a sound anti-money laundering system.
Administration (DEA), which take action as per their own codes and charters.24 In case of This includes25:
investigations related to money laundering, the agencies authorized to investigate into
violations of Sections 1956 and 1957 as described above, are such components of (a) i. legal provisions outlawing money laundering
Department of Justice as the Attorney General may direct, (b) Department of the Treasury as ii. application of financial safeguards by industry
the Secretary of the Treasury may direct and (c) with respect to offences over which the
United States Postal Service has jurisdiction, the Postal Service. The authority has to be Some of the measures taken are outlined below:
exercised on the basis of an agreement between the three offices. Further, offences related to
pollution may be investigated by the Department of Justice and the National Enforcement 5.2.2.1 Legal provisions outlawing money laundering
Investigations Center of the Environment Protection Agency [Sections 1956(e) and 1957
(e)]. This list of authorized agencies has now been expanded vide Section 403 of Title IV of 5.2.2.1.1 The Proceeds of Crime Act 2002 (POCA) provides for a single set of money
USA PATRIOT Improvement and Reauthorization Act, 2005 by inserting the phrase ‘with laundering offences, applicable throughout the UK to proceeds of all crimes. Thus, law
respect to offenses over which the Department of Homeland Security has jurisdiction, by enforcement agencies no longer need to show that illicit money has been derived from one
such components of the Department of Homeland Security as the Secretary of Homeland particular kind of crime.26 Some of the offences mentioned in Part 7 of POCA which deals
Security may direct’ and consequently, the aforesaid agreement is now to be entered into by with money laundering, are as follows:
four parties.
Section 327: Concealing etc.
5.2.1.8 The Federal Bureau of Investigation (FBI), Immigration and Customs Enforcement
(1) A person commits an offence if he –
(ICE), Internal Revenue Service-Criminal Investigation (IRS-CI) and Drug Enforcement

82 83
24 25
Source: Terrorist Financing: US Agency Efforts and Inter-Agency Coordination; August 3, 2005; CRS Report for Congress ‘The Financial Challenge to Crime and Terrorism’; HM Treasury, February, 2007
26
ibid
 Combatting Terrorism Measures against Financing of Terrorism

(a) conceals criminal property; Section 329: Acquisition, use and possession

(b) disguises criminal property; (1) A person commits an offence if he-

(c) converts criminal property; (a acquires criminal property;

(d) transfers criminal property; (b uses criminal property;

(e) removes criminal property from England and Wales or from Scotland or from Northern (c) has possession of criminal property.
Ireland.
(2) But a person does not commit such an offence if-
(2) But a person does not commit such an offence if-
(a) he makes an authorized disclosure under section 338 and [if the disclosure is made
(a) he makes an authorized disclosure under section 338 and [if the disclosure is made before he does the act mentioned in subsection (1)] he has the appropriate consent;
before he does the act mentioned in subsection (1)] he has the appropriate consent;
(b) he intended to make such a disclosure but had a reasonable excuse for not doing so;
(b) he intended to make such a disclosure but had a reasonable excuse for not doing so;
(c) he acquired or used or had possession of property for adequate consideration;
(c) the act he does is done in carrying out a function he has relating to the enforcement
of any provision of this Act or of any other enactment relating to criminal conduct or (d) the act he does is done in carrying out a function he has relating to the enforcement
benefit from criminal conduct. of any provision of this Act or of any other enactment relating to criminal conduct or
benefit from criminal conduct.
(3) Concealing or disguising criminal property includes concealing or disguising its nature,
source, location, disposition, movement or ownership or any rights with respect to it. (3) For the purposes of this section –

Section 328: Arrangements
(1) A person commits an offence if he enters into or becomes concerned in an arrangement which
he knows or suspects facilitates (by whatever means) the acquisition, retention, use or
control of criminal property by or on behalf of another person.
(a) a person acquires property for inadequate consideration if the value of the consideration
is significantly less than the value of the property;
(b) a person uses or has possession of property for inadequate consideration if the value of
the consideration is significantly less than the value of the use or possession;

(2) But a person does not commit such an offence if- (c) the provision by a person of goods or services which he knows or suspects may help
another to carry out criminal conduct is not consideration.
(a) he makes an authorized disclosure under section 338 and [if the disclosure is made
before he does the act mentioned in subsection (1)] he has the appropriate consent; 5.2.2.1.2 The penalties for such offences are provided as under:

(b) he intended to make such a disclosure but had a reasonable excuse for not doing so; Section 334: Penalties

(c) the act he does is done in carrying out a function he has relating to the enforcement (1) A person guilty of an offence under section 327, 328 or 329 is liable -
of any provision of this Act or of any other enactment relating to criminal conduct or
benefit from criminal conduct. (a) on summary conviction, to imprisonment for a term not exceeding six months or to a
fine not exceeding the statutory maximum or to both, or

84 85
 Combatting Terrorism Measures against Financing of Terrorism

(a) conceals criminal property; Section 329: Acquisition, use and possession

(b) disguises criminal property; (1) A person commits an offence if he-

(c) converts criminal property; (a acquires criminal property;

(d) transfers criminal property; (b uses criminal property;

(e) removes criminal property from England and Wales or from Scotland or from Northern (c) has possession of criminal property.
Ireland.
(2) But a person does not commit such an offence if-
(2) But a person does not commit such an offence if-
(a) he makes an authorized disclosure under section 338 and [if the disclosure is made
(a) he makes an authorized disclosure under section 338 and [if the disclosure is made before he does the act mentioned in subsection (1)] he has the appropriate consent;
before he does the act mentioned in subsection (1)] he has the appropriate consent;
(b) he intended to make such a disclosure but had a reasonable excuse for not doing so;
(b) he intended to make such a disclosure but had a reasonable excuse for not doing so;
(c) he acquired or used or had possession of property for adequate consideration;
(c) the act he does is done in carrying out a function he has relating to the enforcement
of any provision of this Act or of any other enactment relating to criminal conduct or (d) the act he does is done in carrying out a function he has relating to the enforcement
benefit from criminal conduct. of any provision of this Act or of any other enactment relating to criminal conduct or
benefit from criminal conduct.
(3) Concealing or disguising criminal property includes concealing or disguising its nature,
source, location, disposition, movement or ownership or any rights with respect to it. (3) For the purposes of this section –

Section 328: Arrangements
(1) A person commits an offence if he enters into or becomes concerned in an arrangement which
he knows or suspects facilitates (by whatever means) the acquisition, retention, use or
control of criminal property by or on behalf of another person.
(a) a person acquires property for inadequate consideration if the value of the consideration
is significantly less than the value of the property;
(b) a person uses or has possession of property for inadequate consideration if the value of
the consideration is significantly less than the value of the use or possession;

(2) But a person does not commit such an offence if- (c) the provision by a person of goods or services which he knows or suspects may help
another to carry out criminal conduct is not consideration.
(a) he makes an authorized disclosure under section 338 and [if the disclosure is made
before he does the act mentioned in subsection (1)] he has the appropriate consent; 5.2.2.1.2 The penalties for such offences are provided as under:

(b) he intended to make such a disclosure but had a reasonable excuse for not doing so; Section 334: Penalties

(c) the act he does is done in carrying out a function he has relating to the enforcement (1) A person guilty of an offence under section 327, 328 or 329 is liable -
of any provision of this Act or of any other enactment relating to criminal conduct or
benefit from criminal conduct. (a) on summary conviction, to imprisonment for a term not exceeding six months or to a
fine not exceeding the statutory maximum or to both, or

84 85
 Combatting Terrorism Measures against Financing of Terrorism

(b) on conviction on indictment, to imprisonment for a term not exceeding 14 years or to (9) Property is all property wherever situated and includes –
a fine or to both.
a) money;
5.2.2.1.3 Definitions applicable to this part are:
b) all forms of property, real or personal, heritable or moveable;
Section 340: Interpretation
c) things in action and other intangible or incorporeal property.
(1) This section applies for the purposes of this Part.
(10) The following rules apply in relation to property –
(2) Criminal conduct is conduct which -
a) property is obtained by a person if he obtains an interest in it;
a) constitutes an offence in any part of the United Kingdom, or
b) references to an interest, in relation to land in England and Wales or Northern
b) would constitute an offence in any part of the United Kingdom if it occurred there.
Ireland, are to any legal estate or equitable interest or power;
(3) Property is criminal property if –
c) references to an interest, in relation to land in Scotland, are to any estate, interest,
a) it constitutes a person’s benefit from criminal conduct or it represents such a benefit servitude or other heritable right in or over land, including a heritable security;
(in whole or part and whether directly or indirectly), and
d) references to an interest, in relation to property other than land, include references to
b) the alleged offender knows or suspects that it constitutes or represents such a benefit. a right (including a right to possession).
(4) It is immaterial – (11) Money laundering is an act which –
a) who carried out the conduct; a) constitutes an offence under section 327, 328 or 329,
b) who benefited from it;
b) constitutes an attempt, conspiracy or incitement to commit an offence specified in
c) whether the conduct occurred before or after the passing of this Act. paragraph (a),

(5) A person benefits from conduct if he obtains property as a result of or in connection with the c) constitutes aiding, abetting, counselling or procuring the commission of an offence
conduct. specified in paragraph (a), or

(6) If a person obtains a pecuniary advantage as a result of or in connection with conduct, he is
to be taken to obtain as a result of or in connection with the conduct a sum of money equal
to the value of the pecuniary advantage.
(7) References to property or a pecuniary advantage obtained in connection with conduct include
references to property or a pecuniary advantage obtained in both that connection and some
other.
d) would constitute an offence specified in paragraph (a), (b) or (c ) if done in the
United Kingdom.
5.2.2.1.4 Thus, with one stroke, POCA ‘opens up new legal avenues to prosecute those
associated with criminal finance and to deprive them of any benefit they might enjoy from
criminal assets’27. It has been claimed that POCA “delivers one of the world’s most powerful
legal tools against money laundering.”28

(8) If a person benefits from conduct his benefit is the property obtained as a result of or in 5.2.2.2 Application of financial safeguards by industry
connection with the conduct.
5.2.2.2.1 These involve procedural mechanisms and monitoring measures to be adopted by

86 87
27
ibid
28
ibid
 Combatting Terrorism Measures against Financing of Terrorism

(b) on conviction on indictment, to imprisonment for a term not exceeding 14 years or to (9) Property is all property wherever situated and includes –
a fine or to both.
a) money;
5.2.2.1.3 Definitions applicable to this part are:
b) all forms of property, real or personal, heritable or moveable;
Section 340: Interpretation
c) things in action and other intangible or incorporeal property.
(1) This section applies for the purposes of this Part.
(10) The following rules apply in relation to property –
(2) Criminal conduct is conduct which -
a) property is obtained by a person if he obtains an interest in it;
a) constitutes an offence in any part of the United Kingdom, or
b) references to an interest, in relation to land in England and Wales or Northern
b) would constitute an offence in any part of the United Kingdom if it occurred there.
Ireland, are to any legal estate or equitable interest or power;
(3) Property is criminal property if –
c) references to an interest, in relation to land in Scotland, are to any estate, interest,
a) it constitutes a person’s benefit from criminal conduct or it represents such a benefit servitude or other heritable right in or over land, including a heritable security;
(in whole or part and whether directly or indirectly), and
d) references to an interest, in relation to property other than land, include references to
b) the alleged offender knows or suspects that it constitutes or represents such a benefit. a right (including a right to possession).
(4) It is immaterial – (11) Money laundering is an act which –
a) who carried out the conduct; a) constitutes an offence under section 327, 328 or 329,
b) who benefited from it;
b) constitutes an attempt, conspiracy or incitement to commit an offence specified in
c) whether the conduct occurred before or after the passing of this Act. paragraph (a),

(5) A person benefits from conduct if he obtains property as a result of or in connection with the c) constitutes aiding, abetting, counselling or procuring the commission of an offence
conduct. specified in paragraph (a), or

(6) If a person obtains a pecuniary advantage as a result of or in connection with conduct, he is
to be taken to obtain as a result of or in connection with the conduct a sum of money equal
to the value of the pecuniary advantage.
(7) References to property or a pecuniary advantage obtained in connection with conduct include
references to property or a pecuniary advantage obtained in both that connection and some
other.
d) would constitute an offence specified in paragraph (a), (b) or (c ) if done in the
United Kingdom.
5.2.2.1.4 Thus, with one stroke, POCA ‘opens up new legal avenues to prosecute those
associated with criminal finance and to deprive them of any benefit they might enjoy from
criminal assets’27. It has been claimed that POCA “delivers one of the world’s most powerful
legal tools against money laundering.”28

(8) If a person benefits from conduct his benefit is the property obtained as a result of or in 5.2.2.2 Application of financial safeguards by industry
connection with the conduct.
5.2.2.2.1 These involve procedural mechanisms and monitoring measures to be adopted by

86 87
27
ibid
28
ibid
 Combatting Terrorism
players in the financial system. The Money Laundering Regulations 2007 provides that due
diligence measures be undertaken in the case of customer identification; record-keeping,
procedures and training; supervision and registration of high value dealers, money service
businesses and trusts or company service providers; etc. These Regulations apply to (i) credit
institutions, (ii) financial institutions, (iii) auditors, insolvency practitioners, external accountants
and tax advisers, (iv) independent legal professionals, (v) trust or company service providers,
(vi) estate agents, (vii) high value dealers, and (viii) casinos.29 Thus, a very wide spectrum of
service providers is covered under these Regulations. The information is to be provided to the
UK FIU, (which is now a unit housed within Serious Organised Crime Agency), which in
turn analyses the information and makes it available to law enforcement agencies. The FIU
also has a specialized Terrorist Finance Team.30
5.2.2.2.2 Further, in case of persons convicted for certain serious offences, the Court may
make a Financial Reporting Order under Section 76 of the Serious Crime and Police Act
2005 which requires continuous disclosure of financial records provided the court is satisfied
that the risk of the offender committinganother such offence is ‘sufficiently high’.
5.2.2.2.3 POCA also contains provisions for making confiscation orders in cases where the
offender has been convicted under any other law. Under these orders, the offender is required
to pay back the value of the benefit derived from a given crime. As mentioned earlier, it is not
necessary under POCA to link a particular crime with a particular benefit. Further, provisions
for making Restraint Orders are also available in POCA to prevent the disposal or
disappearance of property that may ultimately need to be sold to satisfy a confiscation order.31
5.2.3 Measures in India
5.2.3.1 Anti money-laundering measures
5.2.3.1.1 The provisions related to money laundering are contained in the Prevention of
Money-Laundering Act, 2002 (PMLA) as amended by the Prevention of Money-Laundering
(Amendment) Act, 2005. As per Section 2(p) of the PMLA, money-laundering has the
meaning assigned to it in Section 3 of the Act which defines the offence of money-laundering
as follows:
“Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party
or is actually involved in any process or activity connected with the proceeds of crime and projecting
it as untainted property shall be guilty of offence of money-launder.” (emphasis added)
5.2.3.1.2 Thus, money-laundering is confined to activities/offences connected with ‘proceeds
of crime’. ‘Proceeds of crime’ has been defined in Section 2(u) of the Act to mean any property
88
29
Regulation 3(1), The Money Laundering Regulations 2007
30
‘The Financial Challenge to Crime and Terrorism’; HM Treasury, February, 2007
31
‘The Financial Challenge to Crime and Terrorism’; HM Treasury, February, 2007
Measures against Financing of Terrorism
derived or obtained, directly or indirectly, by any person as a result of criminal activity relating
to a ‘scheduled offence’ or the value of any such property. ‘Scheduled offence’ has been defined
in Section 2(y) to mean the offences specified under Part A of the Schedule to the Act or those
offences specified under Part B of the Schedule to the Act, if the total value involved in such
offences is thirty lakh rupees or more.
5.2.3.1.3 Money-laundering will be an offence under the Act only if it relates to any activity
connected with the proceeds of crime which find mention in the Schedule to the Act.
Transactions not related to these scheduled crimes will be beyond the purview of the Act.
Further, such activity connected with the proceeds of crime should be projected as untainted
property to come under the purview of this Act. Although ‘property’ has been defined in the
Act, the term ‘untainted’ has been left open for interpretation. It is apparent that the
effectiveness of this Act is dependent on the inclusions and exclusions in the Schedule to the
Act. The Schedule has two parts viz. Part A and Part B. Part A consists of Paragraph 1
which describes certain offences under the Indian Penal Code. Paragraph 2 contains certain
offences under the NDPS Act, 1985. Part B of the Schedule contains 5 Paragraphs which
pertain to offences under the IPC; the Arms Act, 1959; The Wildlife (Protection) Act, 1972;
The Immoral Traffic (Prevention) Act, 1956 and The Prevention of Corruption Act, 1988
respectively. A glance at the offences listed in the Schedule reveals that offences related to
organised crime and racketeering; terrorism, including terrorist financing; trafficking in human
beings; illicit trafficking in stolen and other goods; fraud, especially financial frauds;
counterfeiting and piracy of goods; smuggling and insider trading and capital market
manipulations etc. are not listed therein. This limits the effectiveness of the Act as far as
dealing with complex money laundering and terrorist financing operations is concerned.
5.2.3.1.4 Even the offences mentioned in the Schedule have various short-comings in the
present scope of the application of the law. Thus, Paragraph 2 of Part A of the Schedule lists
out Sections 15, 18, 20, 22, 23, 24, 25A, 27A and 29 of the NDPS Act, 1985 while leaving
Section 21 of the same Act untouched which deals with punishment for contravention in
relation to manufacture, possession, sale, purchase, transport, interstate trade or use of
‘manufactured drug’ or any preparation thereof. It may be mentioned here that this is one of
the major areas of criminal activities related to offences under the NDPS Act attracting
punishment in the form of rigorous imprisonment for a term not less than 10 years.
5.2.3.1.5 Similarly, paragraph 4 of Part B of the Schedule lists out offences described in Sections
5, 6, 8 and 9 of the Immoral Traffic (Prevention) Act, 1956 but conspicuously leaves offences
contained in Sections 3 & 4 of this Act which relate to keeping a brothel and living on the
earnings of prostitution. The omission of this section from the purview of the PMLA removes
the proceeds of crime related to this area from the pale of money-laundering legislation.
89
 Combatting Terrorism
players in the financial system. The Money Laundering Regulations 2007 provides that due
diligence measures be undertaken in the case of customer identification; record-keeping,
procedures and training; supervision and registration of high value dealers, money service
businesses and trusts or company service providers; etc. These Regulations apply to (i) credit
institutions, (ii) financial institutions, (iii) auditors, insolvency practitioners, external accountants
and tax advisers, (iv) independent legal professionals, (v) trust or company service providers,
(vi) estate agents, (vii) high value dealers, and (viii) casinos.29 Thus, a very wide spectrum of
service providers is covered under these Regulations. The information is to be provided to the
UK FIU, (which is now a unit housed within Serious Organised Crime Agency), which in
turn analyses the information and makes it available to law enforcement agencies. The FIU
also has a specialized Terrorist Finance Team.30
5.2.2.2.2 Further, in case of persons convicted for certain serious offences, the Court may
make a Financial Reporting Order under Section 76 of the Serious Crime and Police Act
2005 which requires continuous disclosure of financial records provided the court is satisfied
that the risk of the offender committinganother such offence is ‘sufficiently high’.
5.2.2.2.3 POCA also contains provisions for making confiscation orders in cases where the
offender has been convicted under any other law. Under these orders, the offender is required
to pay back the value of the benefit derived from a given crime. As mentioned earlier, it is not
necessary under POCA to link a particular crime with a particular benefit. Further, provisions
for making Restraint Orders are also available in POCA to prevent the disposal or
disappearance of property that may ultimately need to be sold to satisfy a confiscation order.31
5.2.3 Measures in India
5.2.3.1 Anti money-laundering measures
5.2.3.1.1 The provisions related to money laundering are contained in the Prevention of
Money-Laundering Act, 2002 (PMLA) as amended by the Prevention of Money-Laundering
(Amendment) Act, 2005. As per Section 2(p) of the PMLA, money-laundering has the
meaning assigned to it in Section 3 of the Act which defines the offence of money-laundering
as follows:
“Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party
or is actually involved in any process or activity connected with the proceeds of crime and projecting
it as untainted property shall be guilty of offence of money-launder.” (emphasis added)
5.2.3.1.2 Thus, money-laundering is confined to activities/offences connected with ‘proceeds
of crime’. ‘Proceeds of crime’ has been defined in Section 2(u) of the Act to mean any property
88
29
Regulation 3(1), The Money Laundering Regulations 2007
30
‘The Financial Challenge to Crime and Terrorism’; HM Treasury, February, 2007
31
‘The Financial Challenge to Crime and Terrorism’; HM Treasury, February, 2007
Measures against Financing of Terrorism
derived or obtained, directly or indirectly, by any person as a result of criminal activity relating
to a ‘scheduled offence’ or the value of any such property. ‘Scheduled offence’ has been defined
in Section 2(y) to mean the offences specified under Part A of the Schedule to the Act or those
offences specified under Part B of the Schedule to the Act, if the total value involved in such
offences is thirty lakh rupees or more.
5.2.3.1.3 Money-laundering will be an offence under the Act only if it relates to any activity
connected with the proceeds of crime which find mention in the Schedule to the Act.
Transactions not related to these scheduled crimes will be beyond the purview of the Act.
Further, such activity connected with the proceeds of crime should be projected as untainted
property to come under the purview of this Act. Although ‘property’ has been defined in the
Act, the term ‘untainted’ has been left open for interpretation. It is apparent that the
effectiveness of this Act is dependent on the inclusions and exclusions in the Schedule to the
Act. The Schedule has two parts viz. Part A and Part B. Part A consists of Paragraph 1
which describes certain offences under the Indian Penal Code. Paragraph 2 contains certain
offences under the NDPS Act, 1985. Part B of the Schedule contains 5 Paragraphs which
pertain to offences under the IPC; the Arms Act, 1959; The Wildlife (Protection) Act, 1972;
The Immoral Traffic (Prevention) Act, 1956 and The Prevention of Corruption Act, 1988
respectively. A glance at the offences listed in the Schedule reveals that offences related to
organised crime and racketeering; terrorism, including terrorist financing; trafficking in human
beings; illicit trafficking in stolen and other goods; fraud, especially financial frauds;
counterfeiting and piracy of goods; smuggling and insider trading and capital market
manipulations etc. are not listed therein. This limits the effectiveness of the Act as far as
dealing with complex money laundering and terrorist financing operations is concerned.
5.2.3.1.4 Even the offences mentioned in the Schedule have various short-comings in the
present scope of the application of the law. Thus, Paragraph 2 of Part A of the Schedule lists
out Sections 15, 18, 20, 22, 23, 24, 25A, 27A and 29 of the NDPS Act, 1985 while leaving
Section 21 of the same Act untouched which deals with punishment for contravention in
relation to manufacture, possession, sale, purchase, transport, interstate trade or use of
‘manufactured drug’ or any preparation thereof. It may be mentioned here that this is one of
the major areas of criminal activities related to offences under the NDPS Act attracting
punishment in the form of rigorous imprisonment for a term not less than 10 years.
5.2.3.1.5 Similarly, paragraph 4 of Part B of the Schedule lists out offences described in Sections
5, 6, 8 and 9 of the Immoral Traffic (Prevention) Act, 1956 but conspicuously leaves offences
contained in Sections 3 & 4 of this Act which relate to keeping a brothel and living on the
earnings of prostitution. The omission of this section from the purview of the PMLA removes
the proceeds of crime related to this area from the pale of money-laundering legislation.
89
 Combatting Terrorism
5.2.3.1.6 In the same vein, paragraph 5 of Part B of the Schedule lists out offences contained
in Sections 7 to 10 of the Prevention of Corruption Act, 1988 but significantly, leaves out the
provisions of Section 13 which pertain to criminal misconduct by public servants. The
provisions therein cover cases of habitual offence and more importantly, cases of ‘property
disproportionate to known sources of income’. Sections 7 to 10 deal with offences related to
taking gratification other than legal remuneration in respect of an official act, or to influence
a public servant or for exercise of personal influence with a public servant or abetment by a
public servant in some cases. Once the provisions related to offences pertaining to acquisition
of ‘property disproportionate to known sources of income’ have become divorced from the list
of predicate offences, the PMLA would be attracted only if the nexus between a laundered
property and any particular predicate offence is established, an arduous task in itself. As Part
B of the Schedule pertains to offences which would attract the provisions of the PMLA only
if transactions are equal to or more than Rs.30 lacs, to pin down any particular property as
laundered property associated with offences coming under Sections 7 to 10 and involving
transactions of Rs 30 lakhs or more would be rather difficult.
5.2.3.1.7 Apart from the lacunae in the scope and application of the law in the present Act,
there are also some procedural enforcement issues which could impinge on the overall
effectiveness of the Act. These are discussed in the following paragraphs.
5.2.3.1.8 Attachment of property involved in money-laundering: Section 5(1) of the Act empowers
the appropriate authority to provisionally attach property which he has reason to believe are
related to proceeds of crime, provided the possessor of the property has been charged of
having committed a Scheduled offence (Part A and Part B of the Schedule as mentioned
supra). But, the proviso mentions that “no such order of attachment shall be made unless, in relation
to an offence under:
(i) Paragraph 1 of Part A and Part B of the schedule, a report has been forwarded to a
Magistrate under Section 173 of the Code of Criminal Procedure, 1973 (2 of 1974); or
(ii) Paragraph 2 of Part A of the schedule, a police report or a complaint has been filed for
taking cognizance of an offence by the Special Court constituted under sub-section (1) of
Section 36 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985).”
Thus, except for offences under the NDPS Act, 1985, action regarding attachment of property
under PMLA in case of all other offences finding mention in the Schedule can only be initiated
when proceedings under Section173 of the CrPC have been completed. Section173 of the
Cr.P.C. casts a mandatory obligation on a police officer to file a report on completion of
investigation. This Section mentions that:
90
Measures against Financing of Terrorism
“(1) Every investigation under this Chapter shall be completed without unnecessary delay.
(2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a
Magistrate empowered to take cognizance of the offence on a police report, a report in the
form prescribed by the State Government ………”. (emphasis added)
This would mean that no action for attachment of any property, which is believed to be
related to the proceeds of crime, can be initiated until the offence is registered with the police,
investigation has been completed by the competent authority and a report to that effect has
been made to the Magistrate.
5.2.3.1.9 Search and Seizure etc.: Section17(1) of the Act empowers the Director (appointed
under Section 49 of the Act) to authorize any officer subordinate to him to carry out search
and seizure proceedings if he has reason to believe that any person has committed an act,
which constitutes money-laundering or is in possession of proceeds of the crime or records
related to money-laundering. But the proviso to this Section lays down the same pre-conditions
as mentioned in Section5(1) above meaning thereby that the requirements of Section173 of
the CrPC have to be fulfilled before any search could be conducted.
5.2.3.1.10 Attachment of assets and search and seizure action are the two means by which
proceedings can be initiated under the PMLA and both these proceedings are encumbered
by the provisions of Section173 of CrPC. Thus, these proceedings will remain non-starters
until and unless a complaint has been lodged with the respective authorities and a report has
been submitted to the Magistrate.
5.2.3.1.11 Once the proceedings under the PMLA have been initiated, the appropriate
authorities are required to file a complaint before the adjudicating authority within a period
of 30 days. The adjudicating authority will then decide whether such property is involved in
money-laundering. If it confirms such attachment, then such attachment or retention of the
seized property or record shall -
“(a) continue during the pendency of the proceedings relating to any scheduled offence before a
court; and
(b) become final after the guilt of the person is proved in the trial court and order of such trial
court becomes final.”
The order of attachment of any property or retention of the seized property or record will
become final only after the guilt of the person is proved in the trial court and the order of such
91
 Combatting Terrorism
5.2.3.1.6 In the same vein, paragraph 5 of Part B of the Schedule lists out offences contained
in Sections 7 to 10 of the Prevention of Corruption Act, 1988 but significantly, leaves out the
provisions of Section 13 which pertain to criminal misconduct by public servants. The
provisions therein cover cases of habitual offence and more importantly, cases of ‘property
disproportionate to known sources of income’. Sections 7 to 10 deal with offences related to
taking gratification other than legal remuneration in respect of an official act, or to influence
a public servant or for exercise of personal influence with a public servant or abetment by a
public servant in some cases. Once the provisions related to offences pertaining to acquisition
of ‘property disproportionate to known sources of income’ have become divorced from the list
of predicate offences, the PMLA would be attracted only if the nexus between a laundered
property and any particular predicate offence is established, an arduous task in itself. As Part
B of the Schedule pertains to offences which would attract the provisions of the PMLA only
if transactions are equal to or more than Rs.30 lacs, to pin down any particular property as
laundered property associated with offences coming under Sections 7 to 10 and involving
transactions of Rs 30 lakhs or more would be rather difficult.
5.2.3.1.7 Apart from the lacunae in the scope and application of the law in the present Act,
there are also some procedural enforcement issues which could impinge on the overall
effectiveness of the Act. These are discussed in the following paragraphs.
5.2.3.1.8 Attachment of property involved in money-laundering: Section 5(1) of the Act empowers
the appropriate authority to provisionally attach property which he has reason to believe are
related to proceeds of crime, provided the possessor of the property has been charged of
having committed a Scheduled offence (Part A and Part B of the Schedule as mentioned
supra). But, the proviso mentions that “no such order of attachment shall be made unless, in relation
to an offence under:
(i) Paragraph 1 of Part A and Part B of the schedule, a report has been forwarded to a
Magistrate under Section 173 of the Code of Criminal Procedure, 1973 (2 of 1974); or
(ii) Paragraph 2 of Part A of the schedule, a police report or a complaint has been filed for
taking cognizance of an offence by the Special Court constituted under sub-section (1) of
Section 36 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985).”
Thus, except for offences under the NDPS Act, 1985, action regarding attachment of property
under PMLA in case of all other offences finding mention in the Schedule can only be initiated
when proceedings under Section173 of the CrPC have been completed. Section173 of the
Cr.P.C. casts a mandatory obligation on a police officer to file a report on completion of
investigation. This Section mentions that:
90
Measures against Financing of Terrorism
“(1) Every investigation under this Chapter shall be completed without unnecessary delay.
(2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a
Magistrate empowered to take cognizance of the offence on a police report, a report in the
form prescribed by the State Government ………”. (emphasis added)
This would mean that no action for attachment of any property, which is believed to be
related to the proceeds of crime, can be initiated until the offence is registered with the police,
investigation has been completed by the competent authority and a report to that effect has
been made to the Magistrate.
5.2.3.1.9 Search and Seizure etc.: Section17(1) of the Act empowers the Director (appointed
under Section 49 of the Act) to authorize any officer subordinate to him to carry out search
and seizure proceedings if he has reason to believe that any person has committed an act,
which constitutes money-laundering or is in possession of proceeds of the crime or records
related to money-laundering. But the proviso to this Section lays down the same pre-conditions
as mentioned in Section5(1) above meaning thereby that the requirements of Section173 of
the CrPC have to be fulfilled before any search could be conducted.
5.2.3.1.10 Attachment of assets and search and seizure action are the two means by which
proceedings can be initiated under the PMLA and both these proceedings are encumbered
by the provisions of Section173 of CrPC. Thus, these proceedings will remain non-starters
until and unless a complaint has been lodged with the respective authorities and a report has
been submitted to the Magistrate.
5.2.3.1.11 Once the proceedings under the PMLA have been initiated, the appropriate
authorities are required to file a complaint before the adjudicating authority within a period
of 30 days. The adjudicating authority will then decide whether such property is involved in
money-laundering. If it confirms such attachment, then such attachment or retention of the
seized property or record shall -
“(a) continue during the pendency of the proceedings relating to any scheduled offence before a
court; and
(b) become final after the guilt of the person is proved in the trial court and order of such trial
court becomes final.”
The order of attachment of any property or retention of the seized property or record will
become final only after the guilt of the person is proved in the trial court and the order of such
91
 Combatting Terrorism
trial court becomes final. Thus, the punishment under this Act is predicate on conviction
under the offences mentioned in the Schedule to the Act.
5.2.3.1.12 It is understood by the Commission, that Government of India, Ministry of Finance,
has already taken cognizance of most of these infirmities in the Act and is proposing to
introduce amendments to include offences under the SEBI Act, the Customs Act and those
related to counterfeiting and printing of currency as well as offences covered under Section
21 of Narcotic Drugs and Psychotropic Substances Act, Section 12 of Prevention of Corruption
Act and offences under Sections 10,11,13, 15 to 21, and 38 to 40 of the Unlawful Activities
(Prevention) Amendment Act. The Commission would urge that the Bill containing these
amendments, which will substantially strengthen the country’s ability to fight the menace of
money laundering, be expeditiously placed before Parliament.
5.2.3.1.13 As mentioned earlier, although the law enforcement agency (i.e. the Directorate
of Enforcement) has been empowered to attach property and conduct search and seizure
operations in relation to money laundering activities, except in the case of offences under the
Narcotic Drugs and Psychotropic Substances Act, such action under Section 17(1) of the Act
can only take place after the submission of the completion report of investigation under
Section 173 of CrPC to the Magistrate with regard to the offences mentioned in the Schedule
to the PMLA. However, in many cases, waiting for the investigation to be completed by the
police officer and filing of the report by him could provide ample opportunities for obliterating
the money laundering trail, destruction of evidence, movement of assets etc. Thus, the
Commission is of the view that there is a case for advancement of the stage at which the
search & seizure action or attachment of property could be undertaken under the PMLA,
especially in cases which may have wider ramifications. Nonetheless, while allowing for the
same, adequate safeguards may also be provided in the Act in order to reduce the scope for
any possible misuse.
5.2.3.2 Investigation of Money Laundering Offences: The Prevention of Money Laundering Act
incorporates two sets of measures to counter money laundering: (i) it describes the power and
authority available with the officers enforcing the law; and (ii) it also provides for a transaction
reporting regime which is administered by a separate financial intelligence unit. The
Directorate of Enforcement is the law enforcing agency in the case of PMLA. It draws its
strength from officers with proven investigative and related skills from various Services, for
example the Income-tax, Customs and Police, etc. through an objective selection mechanism
for all officers above the rank of Deputy Director. The Enforcement Directorate enforces the
law through its 22 offices across the country, including 10 zonal offices. The present composition
and structure of the Directorate of Enforcement is sound but it may be examined whether
institutional coordination mechanisms between the Directorate of Enforcement and other
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Measures against Financing of Terrorism
intelligence collecting and coordinating agencies, could be strengthened and some provisions
of the PMLA delegated to them with the Enforcement Directorate, of course, remaining the
nodal agency.
5.2.3.3 Financial Intelligence Unit
5.2.3.3.1 After the PMLA was brought into force from 1st July, 2005, the reporting regime
with regard to financial transactions as envisaged in the Act also came into force. This also
led to the creation of the Indian Financial Intelligence Unit (FIU-IND). The formats for the
reporting transactions to the FIU-IND were notified by March, 2006. Reporting could start
only in the financial year 2006-07.32 The regulations include maintenance of record of
prescribed transactions, furnishing information to FIU-IND in the prescribed format, and
verification of clients in the prescribed manner. Every reporting entity is required to furnish
to FIU-IND, inter alia, monthly information relating to cash transactions of value of rupees
ten lakhs or its equivalent in foreign currency, series of integrated cash transactions valued
below rupees ten lakhs or equivalent foreign currency taking place in a month; information
on transactions which appear to be complex or which raise the suspicion of involving proceeds
of crime, within seven days of being satisfied regarding this etc. FIU-IND analyses these
reports and disseminates the information to appropriate enforcement/intelligence agencies.33
The recipients of such information are the Ministry of Home Affairs, Research & Analysis
Wing, Intelligence Bureau, National Security Council Secretariat, Central Board of Direct
Taxes, Central Board of Excise & Customs, Directorate of Enforcement, Narcotics Control
Bureau, Central Bureau of Investigation, Reserve Bank of India, Securities and Exchange
Board of India and Insurance Regulatory Development Authority.34 Presently, all banking
companies including private foreign banks, co-operative banks, RRBs, financial institutions
including insurance companies, hire-purchase companies, chit funds, non-banking financial
companies and intermediaries mentioned in Section 12 of SEBI Act constitute a reporting
entity.35 The reporting regime needs to be extended to high risk sectors such as real-estate as
is the case in the UK.
5.2.3.3.2 As the volume of transactions reported would see a continuous growth accompanied
by an increase in their relative complexity, the FIU-IND would have to be strengthened
organizationally to meet the challenges. Presently, FIU-IND has a sanctioned staff strength
of 43, out of which only 24 are managerial or specialist personnel.36 Compared to this, the
Financial Crimes Enforcement Network (FinCEN), which is the US-FIU, consists of about
300 full-time employees, a third of whom are analysts, another third are administrative and
managerial professionals, with the remaining third including regulatory specialists, technology
experts and Federal agents. In addition, there are approximately 40 long-term detailees from
32
Source: FIU-IND; Annual Report, 2006-07
33
34
Source: ibid 93
Source: ibid
35
Source: ibid
36
Source: ibid
 Combatting Terrorism
trial court becomes final. Thus, the punishment under this Act is predicate on conviction
under the offences mentioned in the Schedule to the Act.
5.2.3.1.12 It is understood by the Commission, that Government of India, Ministry of Finance,
has already taken cognizance of most of these infirmities in the Act and is proposing to
introduce amendments to include offences under the SEBI Act, the Customs Act and those
related to counterfeiting and printing of currency as well as offences covered under Section
21 of Narcotic Drugs and Psychotropic Substances Act, Section 12 of Prevention of Corruption
Act and offences under Sections 10,11,13, 15 to 21, and 38 to 40 of the Unlawful Activities
(Prevention) Amendment Act. The Commission would urge that the Bill containing these
amendments, which will substantially strengthen the country’s ability to fight the menace of
money laundering, be expeditiously placed before Parliament.
5.2.3.1.13 As mentioned earlier, although the law enforcement agency (i.e. the Directorate
of Enforcement) has been empowered to attach property and conduct search and seizure
operations in relation to money laundering activities, except in the case of offences under the
Narcotic Drugs and Psychotropic Substances Act, such action under Section 17(1) of the Act
can only take place after the submission of the completion report of investigation under
Section 173 of CrPC to the Magistrate with regard to the offences mentioned in the Schedule
to the PMLA. However, in many cases, waiting for the investigation to be completed by the
police officer and filing of the report by him could provide ample opportunities for obliterating
the money laundering trail, destruction of evidence, movement of assets etc. Thus, the
Commission is of the view that there is a case for advancement of the stage at which the
search & seizure action or attachment of property could be undertaken under the PMLA,
especially in cases which may have wider ramifications. Nonetheless, while allowing for the
same, adequate safeguards may also be provided in the Act in order to reduce the scope for
any possible misuse.
5.2.3.2 Investigation of Money Laundering Offences: The Prevention of Money Laundering Act
incorporates two sets of measures to counter money laundering: (i) it describes the power and
authority available with the officers enforcing the law; and (ii) it also provides for a transaction
reporting regime which is administered by a separate financial intelligence unit. The
Directorate of Enforcement is the law enforcing agency in the case of PMLA. It draws its
strength from officers with proven investigative and related skills from various Services, for
example the Income-tax, Customs and Police, etc. through an objective selection mechanism
for all officers above the rank of Deputy Director. The Enforcement Directorate enforces the
law through its 22 offices across the country, including 10 zonal offices. The present composition
and structure of the Directorate of Enforcement is sound but it may be examined whether
institutional coordination mechanisms between the Directorate of Enforcement and other
92
Measures against Financing of Terrorism
intelligence collecting and coordinating agencies, could be strengthened and some provisions
of the PMLA delegated to them with the Enforcement Directorate, of course, remaining the
nodal agency.
5.2.3.3 Financial Intelligence Unit
5.2.3.3.1 After the PMLA was brought into force from 1st July, 2005, the reporting regime
with regard to financial transactions as envisaged in the Act also came into force. This also
led to the creation of the Indian Financial Intelligence Unit (FIU-IND). The formats for the
reporting transactions to the FIU-IND were notified by March, 2006. Reporting could start
only in the financial year 2006-07.32 The regulations include maintenance of record of
prescribed transactions, furnishing information to FIU-IND in the prescribed format, and
verification of clients in the prescribed manner. Every reporting entity is required to furnish
to FIU-IND, inter alia, monthly information relating to cash transactions of value of rupees
ten lakhs or its equivalent in foreign currency, series of integrated cash transactions valued
below rupees ten lakhs or equivalent foreign currency taking place in a month; information
on transactions which appear to be complex or which raise the suspicion of involving proceeds
of crime, within seven days of being satisfied regarding this etc. FIU-IND analyses these
reports and disseminates the information to appropriate enforcement/intelligence agencies.33
The recipients of such information are the Ministry of Home Affairs, Research & Analysis
Wing, Intelligence Bureau, National Security Council Secretariat, Central Board of Direct
Taxes, Central Board of Excise & Customs, Directorate of Enforcement, Narcotics Control
Bureau, Central Bureau of Investigation, Reserve Bank of India, Securities and Exchange
Board of India and Insurance Regulatory Development Authority.34 Presently, all banking
companies including private foreign banks, co-operative banks, RRBs, financial institutions
including insurance companies, hire-purchase companies, chit funds, non-banking financial
companies and intermediaries mentioned in Section 12 of SEBI Act constitute a reporting
entity.35 The reporting regime needs to be extended to high risk sectors such as real-estate as
is the case in the UK.
5.2.3.3.2 As the volume of transactions reported would see a continuous growth accompanied
by an increase in their relative complexity, the FIU-IND would have to be strengthened
organizationally to meet the challenges. Presently, FIU-IND has a sanctioned staff strength
of 43, out of which only 24 are managerial or specialist personnel.36 Compared to this, the
Financial Crimes Enforcement Network (FinCEN), which is the US-FIU, consists of about
300 full-time employees, a third of whom are analysts, another third are administrative and
managerial professionals, with the remaining third including regulatory specialists, technology
experts and Federal agents. In addition, there are approximately 40 long-term detailees from
32
Source: FIU-IND; Annual Report, 2006-07
33
34
Source: ibid 93
Source: ibid
35
Source: ibid
36
Source: ibid
 Combatting Terrorism
20 different law enforcement and regulatory agencies.37 There is need to strengthen the FIU-
IND urgently and to build capacity to meet its present and future challenges as required.
5.2.3.4 Co-ordination: Apart from the specific inputs provided by FIU-IND on transactions
suspected of being related to money laundering, the main forum for co-ordination and co-
operation among various agencies dealing with economic offences available to the Directorate
of Enforcement is the Regional Economic Intelligence Councils (REICs). The REICs,
constituted in 1996, are the nodal regional agencies for ensuring operational coordination
amongst different enforcement and investigation agencies dealing with economic offences in
their respective regions. These REICs are located at 18 regional centres throughout the country
and consist of designated officers of CBDT, CBEC, CBI, ED, heads of related agencies of the
Union and State Governments in the region, RBI, SBI, Registrar of Companies, etc. The
REICs not only share information related to tax matters but also cover all areas of economic
intelligence focusing on real time dissemination of information. The functioning of the REICs
is coordinated by the Central Economic Intelligence Bureau (CEIB) which is under the
administrative control of the Department of Revenue, Ministry of Finance. The CEIB acts as
the nodal agency for economic intelligence. As the Directorate of Enforcement is a member
of the REIC, it would be useful if the platform provided by them is also utilized to coordinate
among agencies in cases which are suspected to be linked with money laundering. Further,
owing to the complexity of cases involved, it would also be useful if the FIU-IND, apart from
disseminating agency specific information, furnishes overall region-centric information to
the CEIB for disseminating it to the respective REICs with a view to expanding the information
regime.
5.2.4 Recommendations
a. The Prevention of Money-laundering Act (PMLA) may be suitably
amended at an early date to expand the list of predicate offences to widen
its scope and outreach.
b. The stage at which search and seizure action may be taken under the
PMLA may be advanced in cases involving wider ramifications. Adequate
safeguards may also be put in place in such cases.
c. It may be examined whether institutional coordination mechanisms
between the Directorate of Enforcement and other intelligence collecting
and investigating agencies, could be strengthened and some provisions
of the PMLA delegated to them by the Enforcement Directorate.
94
37
Source: http://www.fincen.gov/af_organization.html; extracted on 17.03.2008
Measures against Financing of Terrorism
d. The financial transaction reporting regime under the Financial Intelligence
Unit (FIU-IND) may be extended to cover high risk sectors such as real-
estate. There is also need to strengthen the capacity of FIU-IND to enable
it to meet future challenges.
e. It would be useful to utilize the platform provided by the Regional
Economic Intelligence Councils (REICs) for increased coordination among
various investigation agencies in cases which are suspected to be linked
with money laundering. Further, owing to the complexity of cases involved,
the FIU-IND, apart from disseminating agency specific information, should
furnish overall region-centric information to the Central Economic
Intelligence Bureau (CEIB) for disseminating it to the respective REICs
with a view to expanding the information regime.
5.3 Measures to Block the Flow of Funds for Financing Terrorist Activities
While an effective money laundering regime is an essential element of the fight against
terrorist finance, certain additional measures are required to prevent financing of terrorist
activities. Steps taken in this connection in the USA and UK are detailed below.
5.3.1 USA
5.3.1.1 Making terrorist finance an offence : US Code, Title 18, Part 1, Chapter 113B, Sections
2331 to 2339D deal with offences related to ‘terrorism’. Section 2332d relates to ‘Financial
Transactions’, wherein engagement in financial transactions with the government of a country
designated as a country supporting international terrorism has been made an offence. Under
Section 2339A, the provision of material support or resources or concealment of the nature,
location, source or ownership of such material support knowing or intending their use in
certain acts etc. is made an offence. Here ‘material support or resources’ has been defined to
include any property, tangible or intangible, or service, including currency or monetary
instruments or financial securities and financial services, inter alia. Section 2339B makes the
provision of such material support to designated foreign terrorist organizations an offence.
Section 2339C makes the provision or collection of funds, directly or indirectly, with the
intention of using or knowing that they would be used to carry out an act to intimidate a
population or to compel a government etc. to do or abstain from doing any act, or which is
an offence under some treaties, an offence.
5.3.1.2 Asset freezing: In the aftermath of the events of September 11, 2001, terrorist assets
and fund were dealt with by way of Executive Order 13224, dated 24.9.01. It is aimed at all
95
 Combatting Terrorism
20 different law enforcement and regulatory agencies.37 There is need to strengthen the FIU-
IND urgently and to build capacity to meet its present and future challenges as required.
5.2.3.4 Co-ordination: Apart from the specific inputs provided by FIU-IND on transactions
suspected of being related to money laundering, the main forum for co-ordination and co-
operation among various agencies dealing with economic offences available to the Directorate
of Enforcement is the Regional Economic Intelligence Councils (REICs). The REICs,
constituted in 1996, are the nodal regional agencies for ensuring operational coordination
amongst different enforcement and investigation agencies dealing with economic offences in
their respective regions. These REICs are located at 18 regional centres throughout the country
and consist of designated officers of CBDT, CBEC, CBI, ED, heads of related agencies of the
Union and State Governments in the region, RBI, SBI, Registrar of Companies, etc. The
REICs not only share information related to tax matters but also cover all areas of economic
intelligence focusing on real time dissemination of information. The functioning of the REICs
is coordinated by the Central Economic Intelligence Bureau (CEIB) which is under the
administrative control of the Department of Revenue, Ministry of Finance. The CEIB acts as
the nodal agency for economic intelligence. As the Directorate of Enforcement is a member
of the REIC, it would be useful if the platform provided by them is also utilized to coordinate
among agencies in cases which are suspected to be linked with money laundering. Further,
owing to the complexity of cases involved, it would also be useful if the FIU-IND, apart from
disseminating agency specific information, furnishes overall region-centric information to
the CEIB for disseminating it to the respective REICs with a view to expanding the information
regime.
5.2.4 Recommendations
a. The Prevention of Money-laundering Act (PMLA) may be suitably
amended at an early date to expand the list of predicate offences to widen
its scope and outreach.
b. The stage at which search and seizure action may be taken under the
PMLA may be advanced in cases involving wider ramifications. Adequate
safeguards may also be put in place in such cases.
c. It may be examined whether institutional coordination mechanisms
between the Directorate of Enforcement and other intelligence collecting
and investigating agencies, could be strengthened and some provisions
of the PMLA delegated to them by the Enforcement Directorate.
94
37
Source: http://www.fincen.gov/af_organization.html; extracted on 17.03.2008
Measures against Financing of Terrorism
d. The financial transaction reporting regime under the Financial Intelligence
Unit (FIU-IND) may be extended to cover high risk sectors such as real-
estate. There is also need to strengthen the capacity of FIU-IND to enable
it to meet future challenges.
e. It would be useful to utilize the platform provided by the Regional
Economic Intelligence Councils (REICs) for increased coordination among
various investigation agencies in cases which are suspected to be linked
with money laundering. Further, owing to the complexity of cases involved,
the FIU-IND, apart from disseminating agency specific information, should
furnish overall region-centric information to the Central Economic
Intelligence Bureau (CEIB) for disseminating it to the respective REICs
with a view to expanding the information regime.
5.3 Measures to Block the Flow of Funds for Financing Terrorist Activities
While an effective money laundering regime is an essential element of the fight against
terrorist finance, certain additional measures are required to prevent financing of terrorist
activities. Steps taken in this connection in the USA and UK are detailed below.
5.3.1 USA
5.3.1.1 Making terrorist finance an offence : US Code, Title 18, Part 1, Chapter 113B, Sections
2331 to 2339D deal with offences related to ‘terrorism’. Section 2332d relates to ‘Financial
Transactions’, wherein engagement in financial transactions with the government of a country
designated as a country supporting international terrorism has been made an offence. Under
Section 2339A, the provision of material support or resources or concealment of the nature,
location, source or ownership of such material support knowing or intending their use in
certain acts etc. is made an offence. Here ‘material support or resources’ has been defined to
include any property, tangible or intangible, or service, including currency or monetary
instruments or financial securities and financial services, inter alia. Section 2339B makes the
provision of such material support to designated foreign terrorist organizations an offence.
Section 2339C makes the provision or collection of funds, directly or indirectly, with the
intention of using or knowing that they would be used to carry out an act to intimidate a
population or to compel a government etc. to do or abstain from doing any act, or which is
an offence under some treaties, an offence.
5.3.1.2 Asset freezing: In the aftermath of the events of September 11, 2001, terrorist assets
and fund were dealt with by way of Executive Order 13224, dated 24.9.01. It is aimed at all
95
 Combatting Terrorism Measures against Financing of Terrorism

individuals and institutions linked to global terrorism and allows the US to freeze assets (b) knows or has reasonable cause to suspect that it will or may be used for the purposes
subject to US jurisdiction and to prohibit transactions by US persons with any person or of terrorism.
institution designated pursuant to the Executive Order based on their association with terrorists
or terrorist organizations. This is achieved by naming such individuals or organizations (4) In this section a reference to the provision of money or other property is a reference to its being
specifically. It also authorizes the imposition of blocking orders on additional domestic or given, lent or otherwise made available, whether or not for consideration.
foreign institutions that support terrorism.38 This Order immediately froze the financial assets (ii) Use and possession of money and property
situated in the US of 27 listed entities and prohibited transactions of US citizens with these
entities. The list included entities which were terrorist organizations, individual terrorist 16.–(1) A person commits an offence if he uses money or other property for the purposes of terrorism.
leaders, several non-profit organizations and a corporation which served as a front for
terrorism.39 The scope of these sanctions was broader than the existing sanctions against (2) A person commits an offence if he -
terrorist activities. The list has been subsequently expanded to include many more individuals,
(a) possesses money or other property, and
charitable organisations, businesses etc.40
(b) intends that it should be used, or has reasonable cause to suspect that it may be used,
5.3.2 UK
for the purposes of terrorism.
5.3.2.1 Making terrorist finance an offence: Part 3 of the Terrorist Act, 2000 creates offences (iii) Funding arrangements
related to fund-raising (Section 15), use and possession of property and money (Section 16),
funding arrangements (Section 17) and money laundering (Section 18) in connection with 17. A person commits an offence if -
terrorist activity. The offences related to terrorist finance are as follows:
(a) he enters into or becomes concerned in an arrangement as a result of which money or other
(i) Fund raising property is made available or is to be made available to another, and

15.–(1) A person commits an offence if he - (b) he knows or has reasonable cause to suspect that it will or may be used for the purposes of
terrorism.
(a) invites another to provide money or other property, and
(iv) Money laundering
(b) intends that it should be used, or has reasonable cause to suspect that it may be used,
for the purposes of terrorism. 18.–(1) A person commits an offence if he enters into or becomes concerned in an arrangement
which facilitates the retention or control by or on behalf of another person of terrorist property -
(2) A person commits an offence if he -
(a) by concealment,
(a) receives money or other property, and
(b) by removal from the jurisdiction,
(b) intends that it should be used, or has reasonable cause to suspect that it may be used,
for the purposes of terrorism. (c) by transfer to nominees, or

(3) A person commits an offence if he— (d) in any other way.

(2) It is a defence for a person charged with an offence under subsection (1) to prove that he did
(a) provides money or other property, and
not know and had no reasonable cause to suspect that the arrangement related to terrorist
property.
38
Source: Contributions by the Department of the Treasury to the Financial War on Terrorism: Fact Sheet; United States Treasury Department,
96 September, 2002
39
97
1
Source: ‘The merging of the counter-terrorism and anti-money laundering regimes’, Bruce Zagaris; http://findarticles.com/p/articles/mi_qa3791/
is_200210/ai_n9108489; extracted on 05.03.2008
40
Source: ibid
 Combatting Terrorism Measures against Financing of Terrorism

individuals and institutions linked to global terrorism and allows the US to freeze assets (b) knows or has reasonable cause to suspect that it will or may be used for the purposes
subject to US jurisdiction and to prohibit transactions by US persons with any person or of terrorism.
institution designated pursuant to the Executive Order based on their association with terrorists
or terrorist organizations. This is achieved by naming such individuals or organizations (4) In this section a reference to the provision of money or other property is a reference to its being
specifically. It also authorizes the imposition of blocking orders on additional domestic or given, lent or otherwise made available, whether or not for consideration.
foreign institutions that support terrorism.38 This Order immediately froze the financial assets (ii) Use and possession of money and property
situated in the US of 27 listed entities and prohibited transactions of US citizens with these
entities. The list included entities which were terrorist organizations, individual terrorist 16.–(1) A person commits an offence if he uses money or other property for the purposes of terrorism.
leaders, several non-profit organizations and a corporation which served as a front for
terrorism.39 The scope of these sanctions was broader than the existing sanctions against (2) A person commits an offence if he -
terrorist activities. The list has been subsequently expanded to include many more individuals,
(a) possesses money or other property, and
charitable organisations, businesses etc.40
(b) intends that it should be used, or has reasonable cause to suspect that it may be used,
5.3.2 UK
for the purposes of terrorism.
5.3.2.1 Making terrorist finance an offence: Part 3 of the Terrorist Act, 2000 creates offences (iii) Funding arrangements
related to fund-raising (Section 15), use and possession of property and money (Section 16),
funding arrangements (Section 17) and money laundering (Section 18) in connection with 17. A person commits an offence if -
terrorist activity. The offences related to terrorist finance are as follows:
(a) he enters into or becomes concerned in an arrangement as a result of which money or other
(i) Fund raising property is made available or is to be made available to another, and

15.–(1) A person commits an offence if he - (b) he knows or has reasonable cause to suspect that it will or may be used for the purposes of
terrorism.
(a) invites another to provide money or other property, and
(iv) Money laundering
(b) intends that it should be used, or has reasonable cause to suspect that it may be used,
for the purposes of terrorism. 18.–(1) A person commits an offence if he enters into or becomes concerned in an arrangement
which facilitates the retention or control by or on behalf of another person of terrorist property -
(2) A person commits an offence if he -
(a) by concealment,
(a) receives money or other property, and
(b) by removal from the jurisdiction,
(b) intends that it should be used, or has reasonable cause to suspect that it may be used,
for the purposes of terrorism. (c) by transfer to nominees, or

(3) A person commits an offence if he— (d) in any other way.

(2) It is a defence for a person charged with an offence under subsection (1) to prove that he did
(a) provides money or other property, and
not know and had no reasonable cause to suspect that the arrangement related to terrorist
property.
38
Source: Contributions by the Department of the Treasury to the Financial War on Terrorism: Fact Sheet; United States Treasury Department,
96 September, 2002
39
97
1
Source: ‘The merging of the counter-terrorism and anti-money laundering regimes’, Bruce Zagaris; http://findarticles.com/p/articles/mi_qa3791/
is_200210/ai_n9108489; extracted on 05.03.2008
40
Source: ibid
 Combatting Terrorism
Section 22 of the Act provides for penalties for offences under Sections 15 to 18 which are
similar to Section 334 of POCA as mentioned earlier in this Chapter. Section 23 provides for
forfeiture order by the court by or before which a person is convicted under sections 15 to 18.
Thus, the legal apparatus for dealing with terrorist finance have been put in place.
5.3.2.2 Asset freezing: HM Treasury can direct freezing of assets and funds on grounds of
suspected involvement with terrorism. This action is also taken in concert with other
Governments.41 The Anti-terrorism, Crime and Security Act 2001 provides for making of
‘freezing orders’ with respect to certain funds. The relevant provisions are being cited below:
“4 Power to make order
(1) The Treasury may make a freezing order if the following two conditions are satisfied.
(2) The first condition is that the Treasury reasonably believe that –
a) action to the detriment of the United Kingdom’s economy (or part of it) has
been or is likely to be taken by a person or persons, or
b) action constituting a threat to the life or property of one or more nationals of
the United Kingdom or residents of the United Kingdom has been or is
likely to be taken by a person or persons.
(3) If one person is believed to have taken or to be likely to take the action the second
condition is that the person is –
a) the government of a country or territory outside the United Kingdom, or
b) a resident of a country or territory outside the United Kingdom.
(4) If two or more persons are believed to have taken or to be likely to take the action the second
condition is that each of them falls within paragraph (a) or (b) of subsection (3); and
different persons may fall within different paragraphs.
5 Contents of order
(1) A freezing order is an order which prohibits persons from making funds available to
or for the benefit of a person or persons specified in the order.
(2) The order must provide that these are the persons who are prohibited –
a) all persons in the United Kingdom, and
98
41
ibid
Measures against Financing of Terrorism
b) all persons elsewhere who are nationals of the United Kingdom or are bodies
incorporated under the law of any part of the United Kingdom or are Scottish
partnerships.
(3) The order may specify the following (and only the following) as the person or
persons to whom or for whose benefit funds are not to be made available –
a) The person or persons reasonably believed by the Treasury to have taken or to
be likely to take the action referred to in section 4;
b) any person the Treasury reasonably believe has provided or is likely to provide
assistance (directly or indirectly) to that person or any of those persons.
(4) A person may be specified under subsection (3) by –
a) being named in the order, or
b) falling within a description of persons set out in the order.
(5) The description must be such that a reasonable person would know whether he fell
within it.
(6) Funds are financial assets and economic benefits of any kind.”
Further, Section 7 of this Act provides that the Treasury must keep a freezing order under
review. As per Section 8, a ‘freezing order’ is effective for two years starting from the day on
which it was made. Section 10 stipulates that a ‘freezing order’ must be laid before Parliament
after being made and it would cease to have effect at the end of 28 days from the date of the
order unless each House of Parliament approves it by a resolution before the end of the
period. However, this does not affect anything done under the order or the power of the
Treasury to make a new order. Thus, in the UK, the Treasury is empowered to make freezing
orders on the basis of a reasonable belief that action detrimental to the country’s economy or
which constitutes a threat to life and property of UK nationals is ‘likely to be taken’ by
person or persons. Such orders prohibit all persons in the UK and all nationals of the UK
including bodies incorporated under any UK law etc. from making funds (financial assets,
economic benefits etc.) to persons named or described in such orders. The order has to be laid
before Parliament within 28 days for approval by a resolution of each House of Parliament,
and once approved, it can have effect for two years. The order is subject to constant review by
the Treasury.
99
 Combatting Terrorism
Section 22 of the Act provides for penalties for offences under Sections 15 to 18 which are
similar to Section 334 of POCA as mentioned earlier in this Chapter. Section 23 provides for
forfeiture order by the court by or before which a person is convicted under sections 15 to 18.
Thus, the legal apparatus for dealing with terrorist finance have been put in place.
5.3.2.2 Asset freezing: HM Treasury can direct freezing of assets and funds on grounds of
suspected involvement with terrorism. This action is also taken in concert with other
Governments.41 The Anti-terrorism, Crime and Security Act 2001 provides for making of
‘freezing orders’ with respect to certain funds. The relevant provisions are being cited below:
“4 Power to make order
(1) The Treasury may make a freezing order if the following two conditions are satisfied.
(2) The first condition is that the Treasury reasonably believe that –
a) action to the detriment of the United Kingdom’s economy (or part of it) has
been or is likely to be taken by a person or persons, or
b) action constituting a threat to the life or property of one or more nationals of
the United Kingdom or residents of the United Kingdom has been or is
likely to be taken by a person or persons.
(3) If one person is believed to have taken or to be likely to take the action the second
condition is that the person is –
a) the government of a country or territory outside the United Kingdom, or
b) a resident of a country or territory outside the United Kingdom.
(4) If two or more persons are believed to have taken or to be likely to take the action the second
condition is that each of them falls within paragraph (a) or (b) of subsection (3); and
different persons may fall within different paragraphs.
5 Contents of order
(1) A freezing order is an order which prohibits persons from making funds available to
or for the benefit of a person or persons specified in the order.
(2) The order must provide that these are the persons who are prohibited –
a) all persons in the United Kingdom, and
98
41
ibid
Measures against Financing of Terrorism
b) all persons elsewhere who are nationals of the United Kingdom or are bodies
incorporated under the law of any part of the United Kingdom or are Scottish
partnerships.
(3) The order may specify the following (and only the following) as the person or
persons to whom or for whose benefit funds are not to be made available –
a) The person or persons reasonably believed by the Treasury to have taken or to
be likely to take the action referred to in section 4;
b) any person the Treasury reasonably believe has provided or is likely to provide
assistance (directly or indirectly) to that person or any of those persons.
(4) A person may be specified under subsection (3) by –
a) being named in the order, or
b) falling within a description of persons set out in the order.
(5) The description must be such that a reasonable person would know whether he fell
within it.
(6) Funds are financial assets and economic benefits of any kind.”
Further, Section 7 of this Act provides that the Treasury must keep a freezing order under
review. As per Section 8, a ‘freezing order’ is effective for two years starting from the day on
which it was made. Section 10 stipulates that a ‘freezing order’ must be laid before Parliament
after being made and it would cease to have effect at the end of 28 days from the date of the
order unless each House of Parliament approves it by a resolution before the end of the
period. However, this does not affect anything done under the order or the power of the
Treasury to make a new order. Thus, in the UK, the Treasury is empowered to make freezing
orders on the basis of a reasonable belief that action detrimental to the country’s economy or
which constitutes a threat to life and property of UK nationals is ‘likely to be taken’ by
person or persons. Such orders prohibit all persons in the UK and all nationals of the UK
including bodies incorporated under any UK law etc. from making funds (financial assets,
economic benefits etc.) to persons named or described in such orders. The order has to be laid
before Parliament within 28 days for approval by a resolution of each House of Parliament,
and once approved, it can have effect for two years. The order is subject to constant review by
the Treasury.
99
 Combatting Terrorism
5.3.3 Measures undertaken in India
Anti-terrorist legislations in India always contained provisions pertaining to financing of
terrorist activities and proceeds of terrorist acts. These are described below in brief:
5.3.3.1 Making terrorist finance an offence
5.3.3.1.1 TADA: Under TADA (as mentioned in Chapter 4 earlier) holding property derived
or obtained from any terrorist activity or acquiring them through terrorist funds was an
offence. The Act also provided for seizure of such property. Section 7-A empowered the
investigating officer to seize or attach any property about which he has reasons to believe
that it is derived or obtained from the commission of any terrorist act under investigation,
albeit with the prior approval of the Superintendent of Police. However, he was also required
to duly inform the Designated Court within 48 hours of such attachment for confirmation or
revoking of the order. The Designated Court was empowered to order forfeiture of such
properties in the event of conviction. (Section 8)
5.3.3.1.2 POTA
5.3.3.1.2.1 Under POTA also, holding property derived or obtained from any terrorist activity
or acquiring them through terrorist funds was an offence. As mentioned earlier in this Report,
the Prevention of Terrorism Act, 2002 (POTA) also included the phrase ‘act of raising funds
intended for the purpose of terrorism’ in the definition of the term ‘a terrorist act’ itself. This
was achieved by way of an Explanation to Section 3(1) which gave the definition of ‘terrorist
act’. POTA also made the holding of proceeds of terrorism illegal {Section 6(1)}and provided
that such proceeds “whether held by a terrorist or by any other person and whether or not such person
is prosecuted or convicted under this Act, shall be liable to be forfeited to the Central Government or the
State Government, as the case may be…” {Section 6(2)}. Further, fund raising for a terrorist
organization was also made an offence (Section 22). This included inviting others to provide
money or property and receiving money or property with the intention of using it or having
reasonable cause to suspect that it may be used, for the purposes of terrorism and providing
money or property knowing or having reasonable cause to suspect that it may be used for the
purpose of terrorism.
5.3.3.1.2.2 Section 7(1) authorized an officer (not below the rank of Superintendent of Police)
investigating an offence committed under this Act to seize or attach any property representing
the proceeds of terrorism. However, prior approval in this case was to be obtained from the
Director General of Police of the State Government before making the order. This authority
extended to seizure or attachment of any property which is being used or is intended to be
100
Measures against Financing of Terrorism
used for the purpose of any organization declared as a terrorist organization for the purposes
of the Act {Section 7(2)}.
5.3.3.1.2.3 Further, the investigating officer had the power to seize and detain cash, including
postal orders, traveller’s cheques, banker’s drafts and other specified monetary instruments,
if had reasons to suspect that it was intended to be used for the purposes of terrorism or it
formed a part of the resources of a terrorist organization {Section 7(6)}. As in the case of
TADA, the investigating officer was required to inform the Designated Authority within 48
hours, who had the authority to confirm or revoke the order. Section 8 empowered the Special
Court to pass an order regarding forfeiture of such property or otherwise. The Special Court
was also empowered to order the attachment of movable and immovable property belonging
to a person accused of any offence under POTA during the period of the trial (Section 16).
5.3.3.1.3 ULPAA
5.3.3.1.3.1 The Unlawful Activities (Prevention) Amendment Act, 2004 also provides
for punishment for knowingly holding a property derived or obtained from the commission
of a terrorist act or acquired through terrorist funds (Section 21). Like POTA, this Act also
prohibits the possession of any proceeds of terrorism and provides for forfeiture of such proceeds
(Section 24). Besides, raising funds for a terrorist organization has also been made an offence
(Section 40).
5.3.3.1.3.2 The Investigating Officer is authorized to seize or attach property representing
the proceeds of terrorism with the prior approval of the Director General of Police of the State
in which such properties are situated. He is required to duly inform the Designated Authority
within forty-eight hours of the seizure or attachment who in turn is empowered to confirm or
revoke the same {Section 25 (1 to 4)}. The Investigating Officer is also authorized to seize
and detain any cash to which the Chapter on ‘Forfeiture of Proceeds of Crime’ applies including
traveller’s cheques and banker’s drafts etc. if they are related to terrorism or a terrorist
organization {Section 25 (5)}. The forfeiture of such proceeds is to be ordered by a Court of
law (Section 26). The Court is also authorized to order attachment of properties of an accused
(Section 33).
5.3.3.2 Blocking the channels of financing terrorist activities
5.3.3.2.1 Owing to the fact that carrying out of any terrorist act would necessarily involve
financial backing, any strategy to counter financing of terrorism should not only contain
measures regarding investigation and prosecution of the offence after the commission of any
terrorist act, but also measures providing legal and institutional basis to gathering of
intelligence/information leading to carrying out of investigations and blocking of funds and
101
 Combatting Terrorism
5.3.3 Measures undertaken in India
Anti-terrorist legislations in India always contained provisions pertaining to financing of
terrorist activities and proceeds of terrorist acts. These are described below in brief:
5.3.3.1 Making terrorist finance an offence
5.3.3.1.1 TADA: Under TADA (as mentioned in Chapter 4 earlier) holding property derived
or obtained from any terrorist activity or acquiring them through terrorist funds was an
offence. The Act also provided for seizure of such property. Section 7-A empowered the
investigating officer to seize or attach any property about which he has reasons to believe
that it is derived or obtained from the commission of any terrorist act under investigation,
albeit with the prior approval of the Superintendent of Police. However, he was also required
to duly inform the Designated Court within 48 hours of such attachment for confirmation or
revoking of the order. The Designated Court was empowered to order forfeiture of such
properties in the event of conviction. (Section 8)
5.3.3.1.2 POTA
5.3.3.1.2.1 Under POTA also, holding property derived or obtained from any terrorist activity
or acquiring them through terrorist funds was an offence. As mentioned earlier in this Report,
the Prevention of Terrorism Act, 2002 (POTA) also included the phrase ‘act of raising funds
intended for the purpose of terrorism’ in the definition of the term ‘a terrorist act’ itself. This
was achieved by way of an Explanation to Section 3(1) which gave the definition of ‘terrorist
act’. POTA also made the holding of proceeds of terrorism illegal {Section 6(1)}and provided
that such proceeds “whether held by a terrorist or by any other person and whether or not such person
is prosecuted or convicted under this Act, shall be liable to be forfeited to the Central Government or the
State Government, as the case may be…” {Section 6(2)}. Further, fund raising for a terrorist
organization was also made an offence (Section 22). This included inviting others to provide
money or property and receiving money or property with the intention of using it or having
reasonable cause to suspect that it may be used, for the purposes of terrorism and providing
money or property knowing or having reasonable cause to suspect that it may be used for the
purpose of terrorism.
5.3.3.1.2.2 Section 7(1) authorized an officer (not below the rank of Superintendent of Police)
investigating an offence committed under this Act to seize or attach any property representing
the proceeds of terrorism. However, prior approval in this case was to be obtained from the
Director General of Police of the State Government before making the order. This authority
extended to seizure or attachment of any property which is being used or is intended to be
100
Measures against Financing of Terrorism
used for the purpose of any organization declared as a terrorist organization for the purposes
of the Act {Section 7(2)}.
5.3.3.1.2.3 Further, the investigating officer had the power to seize and detain cash, including
postal orders, traveller’s cheques, banker’s drafts and other specified monetary instruments,
if had reasons to suspect that it was intended to be used for the purposes of terrorism or it
formed a part of the resources of a terrorist organization {Section 7(6)}. As in the case of
TADA, the investigating officer was required to inform the Designated Authority within 48
hours, who had the authority to confirm or revoke the order. Section 8 empowered the Special
Court to pass an order regarding forfeiture of such property or otherwise. The Special Court
was also empowered to order the attachment of movable and immovable property belonging
to a person accused of any offence under POTA during the period of the trial (Section 16).
5.3.3.1.3 ULPAA
5.3.3.1.3.1 The Unlawful Activities (Prevention) Amendment Act, 2004 also provides
for punishment for knowingly holding a property derived or obtained from the commission
of a terrorist act or acquired through terrorist funds (Section 21). Like POTA, this Act also
prohibits the possession of any proceeds of terrorism and provides for forfeiture of such proceeds
(Section 24). Besides, raising funds for a terrorist organization has also been made an offence
(Section 40).
5.3.3.1.3.2 The Investigating Officer is authorized to seize or attach property representing
the proceeds of terrorism with the prior approval of the Director General of Police of the State
in which such properties are situated. He is required to duly inform the Designated Authority
within forty-eight hours of the seizure or attachment who in turn is empowered to confirm or
revoke the same {Section 25 (1 to 4)}. The Investigating Officer is also authorized to seize
and detain any cash to which the Chapter on ‘Forfeiture of Proceeds of Crime’ applies including
traveller’s cheques and banker’s drafts etc. if they are related to terrorism or a terrorist
organization {Section 25 (5)}. The forfeiture of such proceeds is to be ordered by a Court of
law (Section 26). The Court is also authorized to order attachment of properties of an accused
(Section 33).
5.3.3.2 Blocking the channels of financing terrorist activities
5.3.3.2.1 Owing to the fact that carrying out of any terrorist act would necessarily involve
financial backing, any strategy to counter financing of terrorism should not only contain
measures regarding investigation and prosecution of the offence after the commission of any
terrorist act, but also measures providing legal and institutional basis to gathering of
intelligence/information leading to carrying out of investigations and blocking of funds and
101
 Combatting Terrorism
material support essential for the commissioning of such acts. In other words, apart from
making the raising of funds for terrorism an offence, focus has to be on prevention of such
acts also. For example, in the US, one important development in the aftermath of the events
of September 11, 2001 was the operationalisation of a Terrorism Financing Operations Section
(TFOS) by the FBI which “works not only to identify and track financial transactions and links after
a terrorist act has occurred; it exploits financial information to identify previously unknown terrorist cells,
to recognize potential terrorist activity or planning, and to predict and prevent potential terrorist acts”.42
In fact, to strengthen the efforts against terrorist financing activities, various investigation
agencies in the US have separately created their own anti-terrorist finance units or cells apart
from increasing their participation in inter-agency efforts.43
5.3.3.2.2 In India the provisions in the ULPAA (the anti-terrorist law in operation today)
regarding attachment and seizure of property leading to forfeiture (Sections 24 to 34) are
applicable only in the case of ‘proceeds of terrorism’. For the purposes of this Act, the term
‘proceeds of terrorism’ has been defined in Section 2(g) to mean “all kinds of properties which
have been derived or obtained from commission of any terrorist act or have been acquired through funds
traceable to a terrorist act, irrespective of person in whose name such proceeds are standing or in whose
possession they are found, and includes any property which is being used, or is intended to be used, for the
purpose of a terrorist organization”. Thus, attachment and forfeiture could only be in the case of
properties which are derived or obtained from the commission of any ‘terrorist act’ or are
acquired by using funds traceable to a ‘terrorist act’. This means that, except in the case of a
‘terrorist organisation’ {which is specifically defined in Section 2(m), ULPAA}, the attachment
and forfeiture provisions become operative only after the ‘terrorist act’ has already been
committed. Even the seizure and detaining of cash etc. {provided for in Section 25(5) as
mentioned above}, is subject to the pre-condition put by the phrase ‘to which this Chapter
applies’. When taken together with the fact that Section 25(5) is contained in Chapter V,
which pertains to ‘Forfeiture of Proceeds of Terrorism’, it follows that this provision is also
linked with ‘proceeds of terrorism’ and is further dependent on the prior commission of a
terrorist act as mentioned above.
5.3.3.2.3 Under POTA also, attachment could be done of only that property which represented
proceeds of terrorism {Section 7(1)}. ‘Proceeds of terrorism’ was defined to mean “all kinds of
properties which have been derived or obtained from commission of any terrorist act or have been acquired
through funds traceable to a terrorist act, and shall include cash irrespective of person in whose name such
proceeds are standing or in whose possession they are found”. Further, even under POTA, the seizure
and detaining of cash etc. for which there is reasonable grounds to suspect that it is either
intended to be used for the purpose of terrorism or it forms the whole or part of the resources
of an organization declared as ‘terrorist organisation’ {provided for in Section 7(6) as mentioned
102 42
Report to the National Commission on Terrorist Attacks upon the United States: The FBIs Counterterrorism Program since September 2001; April
14, 2004
43
Anne L. Clunan: ‘US and International Responses to Terrorist Financing’; in ‘Strategic Insights’, Volume IV, Issue 1 (January 2005); http://
www.ccc.nps.navy.mil/si/2005/jan/clunanJan05.pdf (extracted on 19.03.08)
Measures against Financing of Terrorism
above}, was subject to the pre-condition put by the phrase ‘to which this Chapter applies’.
However, the Chapter in this case pertained to ‘Punishment for, and measures for dealing
with, terrorist activities’. Thus, this provision was not restrained by limiting its application
to ‘proceeds of terrorism’ as is the case presently under ULPAA. Thus, under Section 7(6) of
POTA, cash etc which was suspected to be intended for carrying out a terrorist act could be
seized even before the commission of such act. This was also facilitated by the fact that the
phrase ‘the raising of funds intended for the purpose of terrorism’ was included in the definition
of a ‘terrorist act’. The Commission is of the view that in order to thwart the menace of
terrorism and block the financing of terrorist activities, apart from the provisions already
mentioned above, the new legal provisions on terrorism may also incorporate provisions
regarding freezing of assets, bank accounts, deposits etc. while investigating the financial
trail in cases where there is reasonable suspicion of their intended use in facilitating the
commission of terrorist acts. Such actions may be undertaken by the investigating officer
with the prior approval of a designated authority and subject to adequate safeguards.
5.3.3.2.4 Information/intelligence on terrorist financing activities could be, and are actually
being, generated by different intelligence and investigation agencies which are engaged in
general or specific fields of activities. Financing of terrorist activities can be done through a
multitude of modes, like: (a) value transfers through trading transactions, (b) hawala
transactions, (c) currency smuggling, (d) counterfeiting, (e) defrauding financial institutions
and the public at large, (f) false claim of exemptions, (g) false claim of refunds, (h) using non-
profit organizations and charities as a vehicle (i) drug trafficking and narcotics trade, (j)
investments and trading in capital and commodities markets (including foreign investments),
(k) transactions in real estate etc. The Commission is of the view that owing to the scope for
their abuse, the investigation agencies having the authority to inquire into such activities as
mentioned above, need to devote more resources and manpower to identify suspected terrorist
financing activities so that information could be provided to intelligence agencies and
authorities empowered to investigate terrorism cases.
5.3.3.2.5 Another important source of information in this regard is the financial reporting
regime administered by FIU-IND. This regime has been strengthened recently, in the sense
that the Prevention of Money-laundering (Maintenance of Record of the Nature and Value of
Transactions, the Procedure and Manner of Maintaining and Time of Furnishing Information
and Verification and Maintenance of Records of the Identity of the Clients of the Banking
Companies, Financial Institutions and Intermediaries) Rules, 2005 have been amended in
May, 2007 to include reporting to FIU-IND of any transaction which “gives rise to a reasonable
ground of suspicion that it may involve financing of the activities relating to terrorism”.44 Thus, the
entities covered by the transaction reporting regime are now required to report such specific
103
44
Notification No. 4/2007 dated 24.05.2007, Department of Revenue, Ministry of Finance; Source: http://fiuindia.gov.in/notifications-
no4amendments.htm (extracted on 26.03.2008)
 Combatting Terrorism
material support essential for the commissioning of such acts. In other words, apart from
making the raising of funds for terrorism an offence, focus has to be on prevention of such
acts also. For example, in the US, one important development in the aftermath of the events
of September 11, 2001 was the operationalisation of a Terrorism Financing Operations Section
(TFOS) by the FBI which “works not only to identify and track financial transactions and links after
a terrorist act has occurred; it exploits financial information to identify previously unknown terrorist cells,
to recognize potential terrorist activity or planning, and to predict and prevent potential terrorist acts”.42
In fact, to strengthen the efforts against terrorist financing activities, various investigation
agencies in the US have separately created their own anti-terrorist finance units or cells apart
from increasing their participation in inter-agency efforts.43
5.3.3.2.2 In India the provisions in the ULPAA (the anti-terrorist law in operation today)
regarding attachment and seizure of property leading to forfeiture (Sections 24 to 34) are
applicable only in the case of ‘proceeds of terrorism’. For the purposes of this Act, the term
‘proceeds of terrorism’ has been defined in Section 2(g) to mean “all kinds of properties which
have been derived or obtained from commission of any terrorist act or have been acquired through funds
traceable to a terrorist act, irrespective of person in whose name such proceeds are standing or in whose
possession they are found, and includes any property which is being used, or is intended to be used, for the
purpose of a terrorist organization”. Thus, attachment and forfeiture could only be in the case of
properties which are derived or obtained from the commission of any ‘terrorist act’ or are
acquired by using funds traceable to a ‘terrorist act’. This means that, except in the case of a
‘terrorist organisation’ {which is specifically defined in Section 2(m), ULPAA}, the attachment
and forfeiture provisions become operative only after the ‘terrorist act’ has already been
committed. Even the seizure and detaining of cash etc. {provided for in Section 25(5) as
mentioned above}, is subject to the pre-condition put by the phrase ‘to which this Chapter
applies’. When taken together with the fact that Section 25(5) is contained in Chapter V,
which pertains to ‘Forfeiture of Proceeds of Terrorism’, it follows that this provision is also
linked with ‘proceeds of terrorism’ and is further dependent on the prior commission of a
terrorist act as mentioned above.
5.3.3.2.3 Under POTA also, attachment could be done of only that property which represented
proceeds of terrorism {Section 7(1)}. ‘Proceeds of terrorism’ was defined to mean “all kinds of
properties which have been derived or obtained from commission of any terrorist act or have been acquired
through funds traceable to a terrorist act, and shall include cash irrespective of person in whose name such
proceeds are standing or in whose possession they are found”. Further, even under POTA, the seizure
and detaining of cash etc. for which there is reasonable grounds to suspect that it is either
intended to be used for the purpose of terrorism or it forms the whole or part of the resources
of an organization declared as ‘terrorist organisation’ {provided for in Section 7(6) as mentioned
102 42
Report to the National Commission on Terrorist Attacks upon the United States: The FBIs Counterterrorism Program since September 2001; April
14, 2004
43
Anne L. Clunan: ‘US and International Responses to Terrorist Financing’; in ‘Strategic Insights’, Volume IV, Issue 1 (January 2005); http://
www.ccc.nps.navy.mil/si/2005/jan/clunanJan05.pdf (extracted on 19.03.08)
Measures against Financing of Terrorism
above}, was subject to the pre-condition put by the phrase ‘to which this Chapter applies’.
However, the Chapter in this case pertained to ‘Punishment for, and measures for dealing
with, terrorist activities’. Thus, this provision was not restrained by limiting its application
to ‘proceeds of terrorism’ as is the case presently under ULPAA. Thus, under Section 7(6) of
POTA, cash etc which was suspected to be intended for carrying out a terrorist act could be
seized even before the commission of such act. This was also facilitated by the fact that the
phrase ‘the raising of funds intended for the purpose of terrorism’ was included in the definition
of a ‘terrorist act’. The Commission is of the view that in order to thwart the menace of
terrorism and block the financing of terrorist activities, apart from the provisions already
mentioned above, the new legal provisions on terrorism may also incorporate provisions
regarding freezing of assets, bank accounts, deposits etc. while investigating the financial
trail in cases where there is reasonable suspicion of their intended use in facilitating the
commission of terrorist acts. Such actions may be undertaken by the investigating officer
with the prior approval of a designated authority and subject to adequate safeguards.
5.3.3.2.4 Information/intelligence on terrorist financing activities could be, and are actually
being, generated by different intelligence and investigation agencies which are engaged in
general or specific fields of activities. Financing of terrorist activities can be done through a
multitude of modes, like: (a) value transfers through trading transactions, (b) hawala
transactions, (c) currency smuggling, (d) counterfeiting, (e) defrauding financial institutions
and the public at large, (f) false claim of exemptions, (g) false claim of refunds, (h) using non-
profit organizations and charities as a vehicle (i) drug trafficking and narcotics trade, (j)
investments and trading in capital and commodities markets (including foreign investments),
(k) transactions in real estate etc. The Commission is of the view that owing to the scope for
their abuse, the investigation agencies having the authority to inquire into such activities as
mentioned above, need to devote more resources and manpower to identify suspected terrorist
financing activities so that information could be provided to intelligence agencies and
authorities empowered to investigate terrorism cases.
5.3.3.2.5 Another important source of information in this regard is the financial reporting
regime administered by FIU-IND. This regime has been strengthened recently, in the sense
that the Prevention of Money-laundering (Maintenance of Record of the Nature and Value of
Transactions, the Procedure and Manner of Maintaining and Time of Furnishing Information
and Verification and Maintenance of Records of the Identity of the Clients of the Banking
Companies, Financial Institutions and Intermediaries) Rules, 2005 have been amended in
May, 2007 to include reporting to FIU-IND of any transaction which “gives rise to a reasonable
ground of suspicion that it may involve financing of the activities relating to terrorism”.44 Thus, the
entities covered by the transaction reporting regime are now required to report such specific
103
44
Notification No. 4/2007 dated 24.05.2007, Department of Revenue, Ministry of Finance; Source: http://fiuindia.gov.in/notifications-
no4amendments.htm (extracted on 26.03.2008)
 Combatting Terrorism Measures against Financing of Terrorism

suspicious transactions also. However, for concerted action on the financial leads provided by
terrorism Centre drawing upon expertise from the Union Ministries of
information gathered by various sources, a specialized cell may be created in the proposed
Finance and Home Affairs and the Cabinet Secretariat for taking concerted
National Counter-terrorism Centre drawing upon expertise from the Union Ministries of
action on the financial leads provided from information gathered by various
Finance and Home Affairs and the Cabinet Secretariat. Further, different investigation agencies
sources. Further, different investigation agencies dealing with financial
dealing with financial transactions may set-up anti-terrorist finance cells within their
transactions may set up anti-terrorist finance cells within their
organizations to augment the efforts of intelligence agencies involved in counter-terrorism
organizations to augment the efforts of intelligence agencies involved in
activities and facilitate coordination among agencies.
counter-terrorism activities.
5.3.3.2.6 While financing of terrorist activity through ‘conventional’ methods such as currency
c. For speedy investigation into the financial aspects of specific cases/group
smuggling, counterfeiting, drug-trafficking, frauds, use of informal channels of money
of cases related to terrorist activities, dedicated teams may be formed within
transmission (‘hawala’) etc. continues, methods such as online payments, trade-based money-
the agencies charged with the responsibility of investigating into offences
laundering, abuse of charities, false claims etc. have increasingly assumed centre-stage in the
related to terrorism. This may be accomplished by inducting officers
recent years. As investigation of transactions related to such activities requires specialized
having specialization in different aspects of financial investigation for short
investigation techniques and skills, there is need to develop multi-faceted investigation teams
periods, say three to six months. A protocol for achieving this may be
in the agencies charged with the responsibility of conducting investigations under the anti-
arrived at between the concerned Union and State Ministries/Departments
terrorist law. However, apart from the present system of deputations to such agencies, it
to facilitate such capacity building and strengthening the effectiveness of
would be useful to commission dedicated teams within these investigating agencies with a
the counter-terrorist measures.
view to investigate financial aspects of specific cases/group of cases by inducting officers
having specialization in different aspects of financial investigation for short periods. The
objective would be speedy and focused completion of the financial aspect of the investigation
in such cases within, say three to six months. The placement of officers belonging to different
agencies/organizations for such short periods and for specific cases would thus require arriving
at an understanding between the jurisdictional ministries of the Union and State Governments
and the organizations from which such officers would be sourced. A protocol for achieving
this may be arrived at to facilitate such capacity building, thereby strengthening the
effectiveness of counter-terrorist measures.

5.3.4 Recommendations

a. The new legal framework on terrorism may incorporate provisions

regarding freezing of assets, funds, bank accounts, deposits, cash etc.
when there is reasonable suspicion of their intended use in terrorist
activities. Such actions may be undertaken by the investigating officer
with the prior approval of a designated authority, subject to adequate
safeguards. These provisions may be incorporated in a separate chapter
in the National Security Act, 1980 as recommended in paragraph 4.1.6.9.

b. A specialized cell may be created in the proposed National Counter-

104 105
 Combatting Terrorism Measures against Financing of Terrorism

suspicious transactions also. However, for concerted action on the financial leads provided by
terrorism Centre drawing upon expertise from the Union Ministries of
information gathered by various sources, a specialized cell may be created in the proposed
Finance and Home Affairs and the Cabinet Secretariat for taking concerted
National Counter-terrorism Centre drawing upon expertise from the Union Ministries of
action on the financial leads provided from information gathered by various
Finance and Home Affairs and the Cabinet Secretariat. Further, different investigation agencies
sources. Further, different investigation agencies dealing with financial
dealing with financial transactions may set-up anti-terrorist finance cells within their
transactions may set up anti-terrorist finance cells within their
organizations to augment the efforts of intelligence agencies involved in counter-terrorism
organizations to augment the efforts of intelligence agencies involved in
activities and facilitate coordination among agencies.
counter-terrorism activities.
5.3.3.2.6 While financing of terrorist activity through ‘conventional’ methods such as currency
c. For speedy investigation into the financial aspects of specific cases/group
smuggling, counterfeiting, drug-trafficking, frauds, use of informal channels of money
of cases related to terrorist activities, dedicated teams may be formed within
transmission (‘hawala’) etc. continues, methods such as online payments, trade-based money-
the agencies charged with the responsibility of investigating into offences
laundering, abuse of charities, false claims etc. have increasingly assumed centre-stage in the
related to terrorism. This may be accomplished by inducting officers
recent years. As investigation of transactions related to such activities requires specialized
having specialization in different aspects of financial investigation for short
investigation techniques and skills, there is need to develop multi-faceted investigation teams
periods, say three to six months. A protocol for achieving this may be
in the agencies charged with the responsibility of conducting investigations under the anti-
arrived at between the concerned Union and State Ministries/Departments
terrorist law. However, apart from the present system of deputations to such agencies, it
to facilitate such capacity building and strengthening the effectiveness of
would be useful to commission dedicated teams within these investigating agencies with a
the counter-terrorist measures.
view to investigate financial aspects of specific cases/group of cases by inducting officers
having specialization in different aspects of financial investigation for short periods. The
objective would be speedy and focused completion of the financial aspect of the investigation
in such cases within, say three to six months. The placement of officers belonging to different
agencies/organizations for such short periods and for specific cases would thus require arriving
at an understanding between the jurisdictional ministries of the Union and State Governments
and the organizations from which such officers would be sourced. A protocol for achieving
this may be arrived at to facilitate such capacity building, thereby strengthening the
effectiveness of counter-terrorist measures.

5.3.4 Recommendations

a. The new legal framework on terrorism may incorporate provisions

regarding freezing of assets, funds, bank accounts, deposits, cash etc.
when there is reasonable suspicion of their intended use in terrorist
activities. Such actions may be undertaken by the investigating officer
with the prior approval of a designated authority, subject to adequate
safeguards. These provisions may be incorporated in a separate chapter
in the National Security Act, 1980 as recommended in paragraph 4.1.6.9.

b. A specialized cell may be created in the proposed National Counter-

104 105
 6 INSTITUTIONAL AND ADMINISTRATIVE MEASURE* ROLE OF CITIZENS, CIVIL SOCIETY AND MEDIA IN COMBATTING
TERRORISM
7
7.1 A Multi-dimensional Response

The Commission in its Report on ‘Public Order’ had emphasized the important role played
by the civil society, media and political parties in maintaining public order. A multi-
dimensional response to combat terrorism would require well coordinated action on all fronts
and each of these agencies/institutions has an important role to play.

7.2 Education Box 7.1 : The National Curriculum

Framework, 2005
7.2.1 Decades ago, Carl G. Jung had warned: Peace as a precondition for national
development and as a social temper is
“I am convinced that exploration of the psyche is the proposed as a comprehensive value
science of the future….This is the science we need most framework that has immense relevance
today in view of the growing tendency
of all, for it is gradually becoming more and more obvious across the world towards intolerance and
that neither famine nor earthquake nor microbes nor violence as a way of resolving conflicts.
The potential of peace education for
carcinoma, but man himself is the greatest peril to man, socialising children into a democratic and
just because there is no adequate defense against psychic just culture can be actualised through
epidemics, which cause infinitely more devastations than appropriate activities and a judicious
choice of topics in all subjects and at all
the greatest natural catastrophes”. stages. Peace education as an area of study
is recommended for inclusion in the
7.2.2 Often violence has its roots in the discord between curriculum for teacher education.
different social groups who feel alienated from each other Source: http://ncert.nic.in/html/pdf/
on account of political, religious, social or ideological schoolcurriculum/framework05/
prelims.pdf
differences. In its Seventh Report on ‘Conflict
Resolution’, the Commission has observed that individual and societal tensions manifest
themselves in situations of latent conflicts which can sometimes escalate and erupt into violent
outbreaks. Such violence can take the form of terrorism at the instance of anti-national elements.
Changing the individual psyche through education would make the society more harmonious
and cohesive in the long run and therefore less likely to get influenced by terrorists ideology.

7.2.3 The National Curriculum Framework, 2005 had made certain recommendations for
promoting Education for Peace. The National Council of Educational Research and Training

106 107
*
The contents of this Chapter have been classified as ‘Confidential’ and hence are not included in this printed version.
 6 INSTITUTIONAL AND ADMINISTRATIVE MEASURE* ROLE OF CITIZENS, CIVIL SOCIETY AND MEDIA IN COMBATTING
TERRORISM
7
7.1 A Multi-dimensional Response

The Commission in its Report on ‘Public Order’ had emphasized the important role played
by the civil society, media and political parties in maintaining public order. A multi-
dimensional response to combat terrorism would require well coordinated action on all fronts
and each of these agencies/institutions has an important role to play.

7.2 Education Box 7.1 : The National Curriculum

Framework, 2005
7.2.1 Decades ago, Carl G. Jung had warned: Peace as a precondition for national
development and as a social temper is
“I am convinced that exploration of the psyche is the proposed as a comprehensive value
science of the future….This is the science we need most framework that has immense relevance
today in view of the growing tendency
of all, for it is gradually becoming more and more obvious across the world towards intolerance and
that neither famine nor earthquake nor microbes nor violence as a way of resolving conflicts.
The potential of peace education for
carcinoma, but man himself is the greatest peril to man, socialising children into a democratic and
just because there is no adequate defense against psychic just culture can be actualised through
epidemics, which cause infinitely more devastations than appropriate activities and a judicious
choice of topics in all subjects and at all
the greatest natural catastrophes”. stages. Peace education as an area of study
is recommended for inclusion in the
7.2.2 Often violence has its roots in the discord between curriculum for teacher education.
different social groups who feel alienated from each other Source: http://ncert.nic.in/html/pdf/
on account of political, religious, social or ideological schoolcurriculum/framework05/
prelims.pdf
differences. In its Seventh Report on ‘Conflict
Resolution’, the Commission has observed that individual and societal tensions manifest
themselves in situations of latent conflicts which can sometimes escalate and erupt into violent
outbreaks. Such violence can take the form of terrorism at the instance of anti-national elements.
Changing the individual psyche through education would make the society more harmonious
and cohesive in the long run and therefore less likely to get influenced by terrorists ideology.

7.2.3 The National Curriculum Framework, 2005 had made certain recommendations for
promoting Education for Peace. The National Council of Educational Research and Training

106 107
*
The contents of this Chapter have been classified as ‘Confidential’ and hence are not included in this printed version.
 Combatting Terrorism
(NCERT) has taken initiatives like organizing training programmes for teachers and teacher
education for peace as well as development of resource material. Ministry of Human Resources
Development (MHRD) has recently off-loaded its Education in Human Values Scheme to
the NCERT with the suggestion that the scheme be re-conceptualized by NCERT in line
with the priorities on Education for Peace emerging from National Curriculum Framework,
2005. The National Focus Group on Education for Peace set up by the NCERT has stated
that the fundamental principles underlying the initiatives are:
i. schools are potential nurseries for peace since school education involves the
formative years in a person’s life during which children can be oriented to peace
rather than towards violence;
ii. teachers can be social healers by going beyond the academic syllabi to focus on
pupil centred education in order to inculcate human values in the students;
iii. peace skills promote academic excellence because the capacity to listen, to
cooperate with each other and to develop a positive attitude are the hallmarks of
a good student as well of a peace oriented person.
NCERT has accordingly proposed a scheme to encourage and support institutions, voluntary
agencies and NGOs etc. engaged with school education for promotion of Education for
Peace within the country. These initiatives need to be encouraged with necessary funds and
other material support.
7.2.4 Education also has a role
Box 7.2: Some Recommendations for Education for Peace
in creating the proper Suggested by the National Focus Group
environment for peace. As • Set up peace clubs and peace libraries in schools. Make supplementary
Krishna Kumar, Director, reading materials available that promote peace values and skills.
NCERT has pointed out in his • Co-opt the media as a stakeholder in education for peace. Newspapers
recent book, ‘Battle for Peace’, can be persuaded to run peace columns, similar to the current columns
on religion. The electronic media can be persuaded to broadcast peace
“ We who live in India and programmes tailored to the needs of education for peace in schools. In
Pakistan must realize that the these, there needs to be a special focus on motivating and enabling
teachers to be peace educators.
politics of war and the social
• Make provisions in schools to enable students to celebrate: (a) the
mindset which supports it are
cultural and religious diversity of India, (b) Human Rights Day, (c) Day
our own creations and therefore for the Differentlyabled, (d) Girl Child Day, (e) Women’s Day, and (f)
Environment Day.
we are the only ones who can
• Organise district-level peace festivals for school students, the two-fold
change them”. He suggests purpose of celebrating peace and removing
that education does not merely • Facilitate short-term exchanges between students from various streams
aim at “identification with to help students overcome prejudices, regional, caste, and class barriers.
108
Role of Citizens, Civil Society and Media in Combatting Terrorism
one’s own nation and loyalty to its sovereign state, but it should also enable a child to accept
the validity of competing memories”. He argues that an obsession with education for building
national identity can be debilitating. However, the negative aspect of this laudable suggestion
is that such an approach, even if adopted in India would serve no purpose, unless Pakistan
also shows a similar willingness to give its educational policies a peace orientation.
7.2.5 The response to the phenomenon of Jehadi terrorism being advocated in some madrassas
needs to be countered by emphasising on the true essence of Islam. Educational Institutions
like madrass as well as other social institutions could play a major role in this regard. In fact,
it is important to have a holistic strategy for promotion of Education for Peace, covering
secular as well as religious schools. As far as the secular schools are concerned, the National
Curriculum Framework, 2005, brought out by National Steering Committee of the NCERT
has already suggested a course of action. The feasibility of extending this scheme to religious
schools could also be considered.
7.2.6 Recommendations
a. NCERT has proposed a scheme to encourage and support institutions,
voluntary agencies and NGOs etc. engaged with school education for
promotion of Education for Peace within the country. These initiatives
need to be encouraged with necessary funds and other material support.
b. The feasibility of extending the scheme to religious schools also needs to
be examined.
7.3 The Civil Society
7.3.1 The importance of involving civil society in a comprehensive and multi-dimensional
response to the threat of terrorism had been recognized Box 7.3: The Government’s Resolve to
by the United Nations General Assembly which, while Fight Terrorism
adopting the UN Global Counter Terrorism Strategy “I reiterate our Government’s firm
on 8th September, 2006 affirmed the determination of commitment to deal with such threats to
peace and security, to political stability and
Member States to ‘further encourage non economic progress, to social and communal
governmental organizations and civil society to harmony in our country. Whatever the source
engage, as appropriate, on how to enhance efforts to of terrorism, we are determined to root it out
and ensure that in a democracy political
implement strategy’ (Source: UN General Assembly, change can only come through the ballot box
The United Nations Global Counter-Terrorism and not through the barrel of a gun.”
Strategy, 8 September 2006, operative paragraph 3 Excerpts from the Prime Minister Dr Manmohan
(d); http://www.un.org/terrorism/strategy-counter- Singh’s address at the SPG Raising Day; March
31, 2008; New Delhi
109
 Combatting Terrorism
(NCERT) has taken initiatives like organizing training programmes for teachers and teacher
education for peace as well as development of resource material. Ministry of Human Resources
Development (MHRD) has recently off-loaded its Education in Human Values Scheme to
the NCERT with the suggestion that the scheme be re-conceptualized by NCERT in line
with the priorities on Education for Peace emerging from National Curriculum Framework,
2005. The National Focus Group on Education for Peace set up by the NCERT has stated
that the fundamental principles underlying the initiatives are:
i. schools are potential nurseries for peace since school education involves the
formative years in a person’s life during which children can be oriented to peace
rather than towards violence;
ii. teachers can be social healers by going beyond the academic syllabi to focus on
pupil centred education in order to inculcate human values in the students;
iii. peace skills promote academic excellence because the capacity to listen, to
cooperate with each other and to develop a positive attitude are the hallmarks of
a good student as well of a peace oriented person.
NCERT has accordingly proposed a scheme to encourage and support institutions, voluntary
agencies and NGOs etc. engaged with school education for promotion of Education for
Peace within the country. These initiatives need to be encouraged with necessary funds and
other material support.
7.2.4 Education also has a role
Box 7.2: Some Recommendations for Education for Peace
in creating the proper Suggested by the National Focus Group
environment for peace. As • Set up peace clubs and peace libraries in schools. Make supplementary
Krishna Kumar, Director, reading materials available that promote peace values and skills.
NCERT has pointed out in his • Co-opt the media as a stakeholder in education for peace. Newspapers
recent book, ‘Battle for Peace’, can be persuaded to run peace columns, similar to the current columns
on religion. The electronic media can be persuaded to broadcast peace
“ We who live in India and programmes tailored to the needs of education for peace in schools. In
Pakistan must realize that the these, there needs to be a special focus on motivating and enabling
teachers to be peace educators.
politics of war and the social
• Make provisions in schools to enable students to celebrate: (a) the
mindset which supports it are
cultural and religious diversity of India, (b) Human Rights Day, (c) Day
our own creations and therefore for the Differentlyabled, (d) Girl Child Day, (e) Women’s Day, and (f)
Environment Day.
we are the only ones who can
• Organise district-level peace festivals for school students, the two-fold
change them”. He suggests purpose of celebrating peace and removing
that education does not merely • Facilitate short-term exchanges between students from various streams
aim at “identification with to help students overcome prejudices, regional, caste, and class barriers.
108
Role of Citizens, Civil Society and Media in Combatting Terrorism
one’s own nation and loyalty to its sovereign state, but it should also enable a child to accept
the validity of competing memories”. He argues that an obsession with education for building
national identity can be debilitating. However, the negative aspect of this laudable suggestion
is that such an approach, even if adopted in India would serve no purpose, unless Pakistan
also shows a similar willingness to give its educational policies a peace orientation.
7.2.5 The response to the phenomenon of Jehadi terrorism being advocated in some madrassas
needs to be countered by emphasising on the true essence of Islam. Educational Institutions
like madrass as well as other social institutions could play a major role in this regard. In fact,
it is important to have a holistic strategy for promotion of Education for Peace, covering
secular as well as religious schools. As far as the secular schools are concerned, the National
Curriculum Framework, 2005, brought out by National Steering Committee of the NCERT
has already suggested a course of action. The feasibility of extending this scheme to religious
schools could also be considered.
7.2.6 Recommendations
a. NCERT has proposed a scheme to encourage and support institutions,
voluntary agencies and NGOs etc. engaged with school education for
promotion of Education for Peace within the country. These initiatives
need to be encouraged with necessary funds and other material support.
b. The feasibility of extending the scheme to religious schools also needs to
be examined.
7.3 The Civil Society
7.3.1 The importance of involving civil society in a comprehensive and multi-dimensional
response to the threat of terrorism had been recognized Box 7.3: The Government’s Resolve to
by the United Nations General Assembly which, while Fight Terrorism
adopting the UN Global Counter Terrorism Strategy “I reiterate our Government’s firm
on 8th September, 2006 affirmed the determination of commitment to deal with such threats to
peace and security, to political stability and
Member States to ‘further encourage non economic progress, to social and communal
governmental organizations and civil society to harmony in our country. Whatever the source
engage, as appropriate, on how to enhance efforts to of terrorism, we are determined to root it out
and ensure that in a democracy political
implement strategy’ (Source: UN General Assembly, change can only come through the ballot box
The United Nations Global Counter-Terrorism and not through the barrel of a gun.”
Strategy, 8 September 2006, operative paragraph 3 Excerpts from the Prime Minister Dr Manmohan
(d); http://www.un.org/terrorism/strategy-counter- Singh’s address at the SPG Raising Day; March
31, 2008; New Delhi
109
 Combatting Terrorism
terrorism.shtml). In recent years, there has been a substantial increase in the involvement of
civil society groups in public affairs. They have been instrumental in drawing the attention
of government towards the grievances of the citizens and have also been active in highlighting
the ‘human rights violations’ by the security forces while dealing with terrorists. The
Commission is of the view that given the proximity of these groups to the grassroots their
potential could also be used in several ways which would help in the State’s fight against
terrorism including information of a “local” intelligence type. The Commission also recognizes
that civil society institutions and NGOs can play a prominent and meaningful role in fostering
social inclusion as well as in helping the Government address socio-economic deprivation
that may be a factor in the spread of terrorism.
7.3.2 Civil Society could also be of immense help in the prevention of terrorist acts.
They could play an advisory and educative role in making the community at large aware
of the basic precautions to be taken because in most terrorist strikes, the common citizens
are the target. It is therefore necessary that the citizens are themselves well equipped and
trained to handle any such incident, as apart from being the victims they are also often the
first responders in any crisis. Civil societies and NGOs can partner with law enforcement
agencies to develop targeted programmes for cooperation focusing, for example, on spreading
awareness and understanding of the diversity of local cultures, religious customs and
traditions of certain communities and in developing outreach activities for healing
community rifts and tensions. An alert citizenry is perhaps the best way to ward off terrorist
strikes. Civil society in conjunction with the agencies of the State can help in developing
this capability among the citizens.
7.4 Media
7.4.1 Media is a generic term used to denote all channels of mass information and
communication including newspapers, publications, electronic media and internet. The Fourth
Estate – the media- has always played a major role in public life. It has been a formulator as
well as a reflection of public opinion. With the advent of the electronic media and modernization
of the print media, the coverage, influence and reaction time of the media has improved
substantially. There have also been instances where media reports have stoked conflicts; though
on several occasions they have been instrumental in prevention of outbreak of violence.
7.4.2 A terrorist act affects each of the three – the media, government and terrorists –
differently. The conflicting perspectives arising out of their mutually exclusive concerns and
the urge, of both the terrorists and the government, to bend the media to serve their respective
agendas, could widen the distance between government and the media. Terrorism in
110
Role of Citizens, Civil Society and Media in Combatting Terrorism
democratic countries shows that terrorists thrive on publicity. The media does not intend to
promote the cause of terrorism, but the nature and mandated function of the media – to
cover events, developments and issues – can be exploited by the terrorists. Thus, regardless of
the media’s intentions, the news coverage may serve the expectations of the terrorists. It
should be recognised that even terrorists have a craving for publicity, and the media should
not unwittingly help the terrorists in their designs. Government has its own expectations, it
wants the media to depend on the official version. Government therefore wants the media to
be cooperative and keep the national interests or security concerns uppermost. In fact, when
it comes to acts of terrorism, both the media and the government have a common interest in
protecting people and democracy. But their perspectives and positions defined by their
functions and responsibilities could lead to different and sometimes conflicting stands. Therefore,
it is necessary that government should work towards harnessing the power of the mass media
as a part of its strategy to defeat terrorism. It would be necessary to have an affirmative
media policy based on:
a. Transparency in governance.
b. Easy access to information and sources.
c. Advancing the media’s role as an instrument of vigilance to scrutinize and check
administrative, legal and judicial violations and excesses that endanger civil
and democratic rights in situations of conflict and terrorism.
d. Engaging, enabling, encouraging and assisting the media to fulfil its role of
informed, fair and balanced coverage of crisis, particularly terrorism.
7.4.3 Media policy should include principles of self restraint. Publishers, editors and reporters
need to be sensitized to avoid and exclude those elements of media coverage that may
unwittingly advance the agenda of terrorists. All forms of media should be encouraged to
evolve a self regulating code of conduct to ensure that publicity arising out of terrorist attacks
does not help the terrorist with their nefarious intentions.
7.4.4 The administration needs the support of the media and information professionals who
are schooled and steeped in media values and have acceptance in today’s highly competitive
media world. At present, the availability of professional media officers is limited particularly
at the field levels. This shortage of media professionals in the administration should be
addressed by:
a. Employing professionals from the media who can deliver on responsibilities and
at the same time transform the culture and functioning of government media
departments;
b. Educating information and media officials who have the potential in media-
oriented functions;
111
 Combatting Terrorism
terrorism.shtml). In recent years, there has been a substantial increase in the involvement of
civil society groups in public affairs. They have been instrumental in drawing the attention
of government towards the grievances of the citizens and have also been active in highlighting
the ‘human rights violations’ by the security forces while dealing with terrorists. The
Commission is of the view that given the proximity of these groups to the grassroots their
potential could also be used in several ways which would help in the State’s fight against
terrorism including information of a “local” intelligence type. The Commission also recognizes
that civil society institutions and NGOs can play a prominent and meaningful role in fostering
social inclusion as well as in helping the Government address socio-economic deprivation
that may be a factor in the spread of terrorism.
7.3.2 Civil Society could also be of immense help in the prevention of terrorist acts.
They could play an advisory and educative role in making the community at large aware
of the basic precautions to be taken because in most terrorist strikes, the common citizens
are the target. It is therefore necessary that the citizens are themselves well equipped and
trained to handle any such incident, as apart from being the victims they are also often the
first responders in any crisis. Civil societies and NGOs can partner with law enforcement
agencies to develop targeted programmes for cooperation focusing, for example, on spreading
awareness and understanding of the diversity of local cultures, religious customs and
traditions of certain communities and in developing outreach activities for healing
community rifts and tensions. An alert citizenry is perhaps the best way to ward off terrorist
strikes. Civil society in conjunction with the agencies of the State can help in developing
this capability among the citizens.
7.4 Media
7.4.1 Media is a generic term used to denote all channels of mass information and
communication including newspapers, publications, electronic media and internet. The Fourth
Estate – the media- has always played a major role in public life. It has been a formulator as
well as a reflection of public opinion. With the advent of the electronic media and modernization
of the print media, the coverage, influence and reaction time of the media has improved
substantially. There have also been instances where media reports have stoked conflicts; though
on several occasions they have been instrumental in prevention of outbreak of violence.
7.4.2 A terrorist act affects each of the three – the media, government and terrorists –
differently. The conflicting perspectives arising out of their mutually exclusive concerns and
the urge, of both the terrorists and the government, to bend the media to serve their respective
agendas, could widen the distance between government and the media. Terrorism in
110
Role of Citizens, Civil Society and Media in Combatting Terrorism
democratic countries shows that terrorists thrive on publicity. The media does not intend to
promote the cause of terrorism, but the nature and mandated function of the media – to
cover events, developments and issues – can be exploited by the terrorists. Thus, regardless of
the media’s intentions, the news coverage may serve the expectations of the terrorists. It
should be recognised that even terrorists have a craving for publicity, and the media should
not unwittingly help the terrorists in their designs. Government has its own expectations, it
wants the media to depend on the official version. Government therefore wants the media to
be cooperative and keep the national interests or security concerns uppermost. In fact, when
it comes to acts of terrorism, both the media and the government have a common interest in
protecting people and democracy. But their perspectives and positions defined by their
functions and responsibilities could lead to different and sometimes conflicting stands. Therefore,
it is necessary that government should work towards harnessing the power of the mass media
as a part of its strategy to defeat terrorism. It would be necessary to have an affirmative
media policy based on:
a. Transparency in governance.
b. Easy access to information and sources.
c. Advancing the media’s role as an instrument of vigilance to scrutinize and check
administrative, legal and judicial violations and excesses that endanger civil
and democratic rights in situations of conflict and terrorism.
d. Engaging, enabling, encouraging and assisting the media to fulfil its role of
informed, fair and balanced coverage of crisis, particularly terrorism.
7.4.3 Media policy should include principles of self restraint. Publishers, editors and reporters
need to be sensitized to avoid and exclude those elements of media coverage that may
unwittingly advance the agenda of terrorists. All forms of media should be encouraged to
evolve a self regulating code of conduct to ensure that publicity arising out of terrorist attacks
does not help the terrorist with their nefarious intentions.
7.4.4 The administration needs the support of the media and information professionals who
are schooled and steeped in media values and have acceptance in today’s highly competitive
media world. At present, the availability of professional media officers is limited particularly
at the field levels. This shortage of media professionals in the administration should be
addressed by:
a. Employing professionals from the media who can deliver on responsibilities and
at the same time transform the culture and functioning of government media
departments;
b. Educating information and media officials who have the potential in media-
oriented functions;
111
 Combatting Terrorism
c. Inculcating professionalism and media values through training in media skills,
including in independent news organizations; and
d. Adopting a performance-driven, result-based approach comparable with best
practices in the media industry as against the prevalent cadre-based, service/
tenure-oriented culture.
7.4.5 Induction of media professionals from outside and imparting of media education, training
and skills should not be confined to those in press, publicity and public information
departments. Given the administration’s need and the importance of crisis-preparedness, it
is essential that officials from other all branches of the administration such as general
administration, security forces, forest services, information technology, intelligence and police,
are schooled to become media-savvy.
7.4.6 An informed and engaged media that is not restricted, manipulated or overly regulated
can better appreciate the imperatives of the administration in its fight against terrorism.
Thereby, the administration would also increase its preparedness and effectiveness in dealing
with crisis and develop more appropriate media-oriented responses. Greater transparency
would make the media a purposeful partner in the larger cause of the fight against terrorism.
Transparency can win over the media as an asset and an ally. The potential of media in
spreading education and awareness needs to be tapped to build the capacity of citizens in
dealing with any public disorder and particularly terrorist violence.
7.4.7 Recommendations
a. The potential of media in spreading education and awareness needs to be
tapped to build the capacity of citizens in dealing with any public disorder,
particularly terrorist violence.
b. Media should be encouraged to evolve a self regulating code of conduct
to ensure that publicity arising out of terrorist attacks does not help the
terrorist in their anti-national designs.
112
CONCLUSION
Development, stability, good governance and the rule of law are inextricably linked and any
threat to peace poses an obstacle to the objective of sustainable development of the country.
Terrorism not only subverts the political and social climate but also threatens the economic
stability of the country, undermines democracy and even deprives ordinary citizens of their
fundamental rights, including their right to life.
Terrorists do not belong to any religion or faith or community. Terrorism is an attack on
democracy and the civilized society by a violent few who resort to targeted killing of innocent
citizens in pursuit of their evil designs. In some respects, terrorism is more damaging than an
act of war against the nation because terror acts often target innocent civilians – apart from
the symbols of the State – terrorists have targetted women and children in public parks,
commuters during rush hours on suburban trains, shoppers in a crowded market, community
gatherings on religious occasions. Furthermore, terrorism today has acquired newer and more
dangerous dimensions threatening international peace and stability worldwide with the use
by terrorist groups of modern communication systems, and state-of-the-art technology
combined with global linkages with organized crime, drug trafficking, counterfeit currency
and money laundering. That is why international cooperation is essential in the fight against
terror. India has been one of the worst victims of terrorism but our society has shown tremendous
spirit and resilience in the wake of repeated and wanton terrorist attacks by maintaining
communal harmony and social amity. It is time however for the nation to gear itself to
counter terror in a more coherent and proactive manner and not rely on the patience of its
citizens to outlast and defeat terrorists and their supporters.
The anti-terrorism strategy must recognise that terrorist acts not only ruin innocent lives, but
also divide our society, create discord among people and cause lasting damage to the fabric of
the society. Unlike ‘chemotherapy’ in cancer treatment which destroys both good and bad
cells, a strong anti-terrorism response has to be focussed and well directed against the anti-
national elements. In this Report on Terrorism, the Commission has made wide-ranging
recommendations for improving the capabilities of our intelligence and security agencies,
enhancing coordination among the various security agencies, and creating a new legal
framework for the prosecution of terrorist acts as well as to cut off the flow of funds to terrorist
113
 Combatting Terrorism
c. Inculcating professionalism and media values through training in media skills,
including in independent news organizations; and
d. Adopting a performance-driven, result-based approach comparable with best
practices in the media industry as against the prevalent cadre-based, service/
tenure-oriented culture.
7.4.5 Induction of media professionals from outside and imparting of media education, training
and skills should not be confined to those in press, publicity and public information
departments. Given the administration’s need and the importance of crisis-preparedness, it
is essential that officials from other all branches of the administration such as general
administration, security forces, forest services, information technology, intelligence and police,
are schooled to become media-savvy.
7.4.6 An informed and engaged media that is not restricted, manipulated or overly regulated
can better appreciate the imperatives of the administration in its fight against terrorism.
Thereby, the administration would also increase its preparedness and effectiveness in dealing
with crisis and develop more appropriate media-oriented responses. Greater transparency
would make the media a purposeful partner in the larger cause of the fight against terrorism.
Transparency can win over the media as an asset and an ally. The potential of media in
spreading education and awareness needs to be tapped to build the capacity of citizens in
dealing with any public disorder and particularly terrorist violence.
7.4.7 Recommendations
a. The potential of media in spreading education and awareness needs to be
tapped to build the capacity of citizens in dealing with any public disorder,
particularly terrorist violence.
b. Media should be encouraged to evolve a self regulating code of conduct
to ensure that publicity arising out of terrorist attacks does not help the
terrorist in their anti-national designs.
112
CONCLUSION
Development, stability, good governance and the rule of law are inextricably linked and any
threat to peace poses an obstacle to the objective of sustainable development of the country.
Terrorism not only subverts the political and social climate but also threatens the economic
stability of the country, undermines democracy and even deprives ordinary citizens of their
fundamental rights, including their right to life.
Terrorists do not belong to any religion or faith or community. Terrorism is an attack on
democracy and the civilized society by a violent few who resort to targeted killing of innocent
citizens in pursuit of their evil designs. In some respects, terrorism is more damaging than an
act of war against the nation because terror acts often target innocent civilians – apart from
the symbols of the State – terrorists have targetted women and children in public parks,
commuters during rush hours on suburban trains, shoppers in a crowded market, community
gatherings on religious occasions. Furthermore, terrorism today has acquired newer and more
dangerous dimensions threatening international peace and stability worldwide with the use
by terrorist groups of modern communication systems, and state-of-the-art technology
combined with global linkages with organized crime, drug trafficking, counterfeit currency
and money laundering. That is why international cooperation is essential in the fight against
terror. India has been one of the worst victims of terrorism but our society has shown tremendous
spirit and resilience in the wake of repeated and wanton terrorist attacks by maintaining
communal harmony and social amity. It is time however for the nation to gear itself to
counter terror in a more coherent and proactive manner and not rely on the patience of its
citizens to outlast and defeat terrorists and their supporters.
The anti-terrorism strategy must recognise that terrorist acts not only ruin innocent lives, but
also divide our society, create discord among people and cause lasting damage to the fabric of
the society. Unlike ‘chemotherapy’ in cancer treatment which destroys both good and bad
cells, a strong anti-terrorism response has to be focussed and well directed against the anti-
national elements. In this Report on Terrorism, the Commission has made wide-ranging
recommendations for improving the capabilities of our intelligence and security agencies,
enhancing coordination among the various security agencies, and creating a new legal
framework for the prosecution of terrorist acts as well as to cut off the flow of funds to terrorist
113
 Combatting Terrorism
groups. The Report also points out that in addition to sustained and stringent action by the
security agencies against terrorists and anti-national activities, civil society can also play a
major role both in preventing terrorist activities and in countering the ideology of terrorism.
Cooperation by the citizens and by the media is equally vital in the fight against terrorism.
The thrust of the Report is that a multi-pronged approach encompassing legal and
administrative measures combined with good governance, inclusive development, a vigilant
media and an alert citizenry can defeat terrorism in any form.
114
SUMMARY OF RECOMMENDATIONS
1. (Para 4.1.6.9) Need for a Comprehensive Anti Terrorist Legislation
a. A comprehensive and effective legal framework to deal with all aspects of
terrorism needs to be enacted. The law should have adequate safeguards
to prevent its misuse. The legal provisions to deal with terrorism could be
incorporated in a separate chapter in the National Security Act, 1980.
2. (Para 4.2.9) Definition of Terrorism
a. There is need to define more clearly those criminal acts which can be
construed as being terrorist in nature. The salient features of this definition
should inter alia include the following:
i. use of firearms, explosives or any other lethal substance to cause or
likely to cause damage to life and property and essential
infrastructure including installations/establishments having military
significance.
ii. assassination of (including attempt thereof) public functionaries.
The intent should be to threaten the integrity, security and
sovereignty of India or overawe public functionaries or to terrorise
people or sections of people.
iii. Detention of any person or threat to kill or injure any person to
force the government to act or abstain from acting in a particular
manner.
iv. Providing/facilitating material support, including finances, for the
aforesaid activities.
v. Commission of certain acts or possession of certain arms etc. by
members or supporters of terrorist organizations which cause or
are likely to cause loss of life, injury to a person or damage to any
property.
3. (Para 4.3.8) Bail Provisions
a. Regarding grant of bail, the law should provide that:
i. Notwithstanding anything contained in the Code, no person
accused of an offence punishable under this Act shall, if in custody,
be released on bail or on his own bond unless the Court gives the
Public Prosecutor an opportunity of being heard;
ii. Where the Public Prosecutor opposes the bail application of accused
to release on bail, no person accused of an offence punishable under
115
 Combatting Terrorism
groups. The Report also points out that in addition to sustained and stringent action by the
security agencies against terrorists and anti-national activities, civil society can also play a
major role both in preventing terrorist activities and in countering the ideology of terrorism.
Cooperation by the citizens and by the media is equally vital in the fight against terrorism.
The thrust of the Report is that a multi-pronged approach encompassing legal and
administrative measures combined with good governance, inclusive development, a vigilant
media and an alert citizenry can defeat terrorism in any form.
114
SUMMARY OF RECOMMENDATIONS
1. (Para 4.1.6.9) Need for a Comprehensive Anti Terrorist Legislation
a. A comprehensive and effective legal framework to deal with all aspects of
terrorism needs to be enacted. The law should have adequate safeguards
to prevent its misuse. The legal provisions to deal with terrorism could be
incorporated in a separate chapter in the National Security Act, 1980.
2. (Para 4.2.9) Definition of Terrorism
a. There is need to define more clearly those criminal acts which can be
construed as being terrorist in nature. The salient features of this definition
should inter alia include the following:
i. use of firearms, explosives or any other lethal substance to cause or
likely to cause damage to life and property and essential
infrastructure including installations/establishments having military
significance.
ii. assassination of (including attempt thereof) public functionaries.
The intent should be to threaten the integrity, security and
sovereignty of India or overawe public functionaries or to terrorise
people or sections of people.
iii. Detention of any person or threat to kill or injure any person to
force the government to act or abstain from acting in a particular
manner.
iv. Providing/facilitating material support, including finances, for the
aforesaid activities.
v. Commission of certain acts or possession of certain arms etc. by
members or supporters of terrorist organizations which cause or
are likely to cause loss of life, injury to a person or damage to any
property.
3. (Para 4.3.8) Bail Provisions
a. Regarding grant of bail, the law should provide that:
i. Notwithstanding anything contained in the Code, no person
accused of an offence punishable under this Act shall, if in custody,
be released on bail or on his own bond unless the Court gives the
Public Prosecutor an opportunity of being heard;
ii. Where the Public Prosecutor opposes the bail application of accused
to release on bail, no person accused of an offence punishable under
115
 Combatting Terrorism
this Act or any rule made thereunder shall be released on bail until
the Court is satisfied that there are grounds for believing that the
accused is not guilty of committing such offence.
Provided that after the expiry of a period of one year from the date
of detention of the accused for an offence under this Act, the
provisions of sub-section (i) of this section shall apply.
iii. A Review Committee should review the case of all detenus periodically
and advise the prosecution about the release of the accused on bail
and the prosecution shall be bound by such advice.
4. (Para 4.4.5) Period of Detention (Remand) during Investigation
a. For terrorist and other related offences, it should be provided that Section
167 of the CrPC shall apply subject to the modification that in sub-section
(2), the references to “fifteen days”, “ninety days” and “sixty days”,
wherever they occur, shall be construed as references to “thirty days”,
“ninety days” and “ninety days” respectively.
5. (Para 4.5.10) Confession before a Police Officer
a. Confession before the police should be made admissible as recommended
in the Report on Public Order. But this should be done only if
comprehensive police reforms as suggested by the Commission are carried
out. Till such time, confessions should continue to be made before judicial
magistrates under Section 164 CrPC.
6. (Para 4.6.5) Presumptions under the Law
a. The following legal provisions should be included regarding presumptions:
If it is proved –
i. that the arms or explosives or any other dangerous substance were
recovered from the possession of the accused and there is reason to believe
that such arms or explosives or other substances of similar nature, were
used in the commission of such offence; or that by the evidence of an
expert the fingerprints of the accused, or any other definitive evidence
were found at the site of the offence or on anything including arms and
vehicles used in connection with the commission of such offence the
Court shall draw adverse inference against the accused.
ii. If it is proved that the accused rendered any financial assistance to a
person accused of, or reasonably suspected of, an offence of terrorism,
the Court shall draw adverse inference against the accused.
7. (Para 4.7.10) Review Committee
a. A statutory Review Committee should be constituted to examine each case
registered, within 30 days of its registration. The Review Committee should
satisfy itself that a prima facie case has been made out by the investigation
agency. This Committee should review each case every quarter.
8. (Para 4.9.5) Special Courts
a. Provisions for constitution of Special Fast Track Courts exclusively for
116
Summary of Recommendations
trial of terrorism related cases may be incorporated in the law on terrorism.
Other specific provisions related to such Special Courts may also be
incorporated. Such Courts may be set up as and when required.
9. (Para 4.10.3) Possession of Arms etc.
a. Provision for penalizing unauthorized possession of certain specified arms
and ammunition in notified areas and unauthorized explosive substances,
weapons of mass destruction and biological or chemical substances of
warfare in notified as well as non-notified areas, may be incorporated in
the law on terrorism.
10. (Para 4.11.4) A Federal Agency to Investigate Terrorist Offences
a. The Commission would like to reiterate the recommendations made in
its Report on ‘Public Order’ (paragraph 8.3.14) on the creation of a
specialized Division in the CBI to investigate terror offences.
b. It should be ensured that this Division of the CBI is staffed by personnel
of proven integrity and who are professionally competent and have
developed the required expertise in investigation of terrorism related
offences. The autonomy and independence of this agency may be ensured
through a laid down procedure of appointment and assured fixed tenure
for its personnel.
11. (Para 5.2.4) Measures against Financing of Terrorism – Anti-money Laundering
Measures
a. The Prevention of Money-laundering Act (PMLA) may be suitably
amended at an early date to expand the list of predicate offences to widen
its scope and outreach.
b. The stage at which search and seizure action may be taken under the
PMLA may be advanced in cases involving wider ramifications. Adequate
safeguards may also be put in place in such cases.
c. It may be examined whether institutional coordination mechanisms
between the Directorate of Enforcement and other intelligence collecting
and investigating agencies, could be strengthened and some provisions
of the PMLA delegated to them by the Enforcement Directorate.
d. The financial transaction reporting regime under the Financial Intelligence
Unit (FIU-IND) may be extended to cover high risk sectors such as real-
estate. There is also need to strengthen the capacity of FIU-IND to enable
it to meet future challenges.
e. It would be useful to utilize the platform provided by the Regional
Economic Intelligence Councils (REICs) for increased coordination among
various investigation agencies in cases which are suspected to be linked
with money laundering. Further, owing to the complexity of cases involved,
the FIU-IND, apart from disseminating agency specific information, should
furnish overall region-centric information to the Central Economic
Intelligence Bureau (CEIB) for disseminating it to the respective REICs
with a view to expanding the information regime.
117
 Combatting Terrorism
this Act or any rule made thereunder shall be released on bail until
the Court is satisfied that there are grounds for believing that the
accused is not guilty of committing such offence.
Provided that after the expiry of a period of one year from the date
of detention of the accused for an offence under this Act, the
provisions of sub-section (i) of this section shall apply.
iii. A Review Committee should review the case of all detenus periodically
and advise the prosecution about the release of the accused on bail
and the prosecution shall be bound by such advice.
4. (Para 4.4.5) Period of Detention (Remand) during Investigation
a. For terrorist and other related offences, it should be provided that Section
167 of the CrPC shall apply subject to the modification that in sub-section
(2), the references to “fifteen days”, “ninety days” and “sixty days”,
wherever they occur, shall be construed as references to “thirty days”,
“ninety days” and “ninety days” respectively.
5. (Para 4.5.10) Confession before a Police Officer
a. Confession before the police should be made admissible as recommended
in the Report on Public Order. But this should be done only if
comprehensive police reforms as suggested by the Commission are carried
out. Till such time, confessions should continue to be made before judicial
magistrates under Section 164 CrPC.
6. (Para 4.6.5) Presumptions under the Law
a. The following legal provisions should be included regarding presumptions:
If it is proved –
i. that the arms or explosives or any other dangerous substance were
recovered from the possession of the accused and there is reason to believe
that such arms or explosives or other substances of similar nature, were
used in the commission of such offence; or that by the evidence of an
expert the fingerprints of the accused, or any other definitive evidence
were found at the site of the offence or on anything including arms and
vehicles used in connection with the commission of such offence the
Court shall draw adverse inference against the accused.
ii. If it is proved that the accused rendered any financial assistance to a
person accused of, or reasonably suspected of, an offence of terrorism,
the Court shall draw adverse inference against the accused.
7. (Para 4.7.10) Review Committee
a. A statutory Review Committee should be constituted to examine each case
registered, within 30 days of its registration. The Review Committee should
satisfy itself that a prima facie case has been made out by the investigation
agency. This Committee should review each case every quarter.
8. (Para 4.9.5) Special Courts
a. Provisions for constitution of Special Fast Track Courts exclusively for
116
Summary of Recommendations
trial of terrorism related cases may be incorporated in the law on terrorism.
Other specific provisions related to such Special Courts may also be
incorporated. Such Courts may be set up as and when required.
9. (Para 4.10.3) Possession of Arms etc.
a. Provision for penalizing unauthorized possession of certain specified arms
and ammunition in notified areas and unauthorized explosive substances,
weapons of mass destruction and biological or chemical substances of
warfare in notified as well as non-notified areas, may be incorporated in
the law on terrorism.
10. (Para 4.11.4) A Federal Agency to Investigate Terrorist Offences
a. The Commission would like to reiterate the recommendations made in
its Report on ‘Public Order’ (paragraph 8.3.14) on the creation of a
specialized Division in the CBI to investigate terror offences.
b. It should be ensured that this Division of the CBI is staffed by personnel
of proven integrity and who are professionally competent and have
developed the required expertise in investigation of terrorism related
offences. The autonomy and independence of this agency may be ensured
through a laid down procedure of appointment and assured fixed tenure
for its personnel.
11. (Para 5.2.4) Measures against Financing of Terrorism – Anti-money Laundering
Measures
a. The Prevention of Money-laundering Act (PMLA) may be suitably
amended at an early date to expand the list of predicate offences to widen
its scope and outreach.
b. The stage at which search and seizure action may be taken under the
PMLA may be advanced in cases involving wider ramifications. Adequate
safeguards may also be put in place in such cases.
c. It may be examined whether institutional coordination mechanisms
between the Directorate of Enforcement and other intelligence collecting
and investigating agencies, could be strengthened and some provisions
of the PMLA delegated to them by the Enforcement Directorate.
d. The financial transaction reporting regime under the Financial Intelligence
Unit (FIU-IND) may be extended to cover high risk sectors such as real-
estate. There is also need to strengthen the capacity of FIU-IND to enable
it to meet future challenges.
e. It would be useful to utilize the platform provided by the Regional
Economic Intelligence Councils (REICs) for increased coordination among
various investigation agencies in cases which are suspected to be linked
with money laundering. Further, owing to the complexity of cases involved,
the FIU-IND, apart from disseminating agency specific information, should
furnish overall region-centric information to the Central Economic
Intelligence Bureau (CEIB) for disseminating it to the respective REICs
with a view to expanding the information regime.
117
 Combatting Terrorism
12. (Para 5.3.4) Measures against Financing of Terrorism – Measures to Block the
flow of Funds for Financing Terrorist Activities
a. The new legal framework on terrorism may incorporate provisions
regarding freezing of assets, funds, bank accounts, deposits, cash etc.
when there is reasonable suspicion of their intended use in terrorist
activities. Such actions may be undertaken by the investigating officer
with the prior approval of a designated authority, subject to adequate
safeguards. These provisions may be incorporated in a separate chapter
in the National Security Act, 1980 as recommended in paragraph 4.1.6.9.
b. A specialized cell may be created in the proposed National Counter-
terrorism Centre drawing upon expertise from the Union Ministries of
Finance and Home Affairs and the Cabinet Secretariat for taking concerted
action on the financial leads provided from information gathered by various
sources. Further, different investigation agencies dealing with financial
transactions may setup anti-terrorist finance cells within their organizations
to augment the efforts of intelligence agencies involved in counter-
terrorism activities.
c. For speedy investigation into the financial aspects of specific cases/group
of cases related to terrorist activities, dedicated teams may be formed within
the agencies charged with the responsibility of investigating into offences
related to terrorism. This may be accomplished by inducting officers having
specialization in different aspects of financial investigation for short
periods, say three to six months. A protocol for achieving this may be
arrived at between the concerned Union and State Ministries/Departments
to facilitate such capacity building and strengthening the effectiveness of
the counter-terrorist measures.
13. (Para 7.2.6) Role of Citizens, Civil Society and Media in Combatting Terrorism
– Education
a. NCERT has proposed a scheme to encourage and support institutions,
voluntary agencies and NGOs etc. engaged with school education for
promotion of Education for Peace within the country. These initiatives
need to be encouraged with necessary funds and other material support.
b. The feasibility of extending the scheme to religious schools also needs to
be examined.
18. (Para 7.4.7) Role of Citizens, Civil Society and Media in Combatting Terrorism
– Media
a. The potential of media in spreading education and awareness needs to be
tapped to build the capacity of citizens in dealing with any public disorder,
particularly terrorist violence.
b. Media should be encouraged to evolve a self regulating code of conduct
to ensure that publicity arising out of terrorist attacks does not help the
terrorist in their anti-national designs.
118
Summary of Recommendations
Annexure-I
Recommendations made at ‘National Workshop on Public Order’
March 11th-12th, 2006
Sardar Vallabhbhai Patel National Police Academy, Hyderabad
I. Organised Violence, Terrorism & Extremism: Role of the State and Reforms
• A national forum should be set up for formulation of policy and strategy for dealing
with terrorism.
• A stable, comprehensive, all India anti-terrorist legislation, having adequate
safeguards against abuse, must be put in place.
• While terrorist violence has to be effectively dealt with by the security forces, people’s
grievances – genuine and perceived – which get exploited, have to be redressed by
concerned agencies with a sense of urgency.
• A stable, effective and responsive administration is an antidote to terrorism.
• For effectively dealing with violence, outdated laws (eg., The Explosive Act),
containing irrelevant provisions resulting in delay in investigation and prosecution
of offenders, must be amended.
• Developmental activities should be planned and executed with due regard to
problems of displacement of people, resettlement etc., so that violent eruption of
conflicts on such issues can be avoided.
• For tackling the root causes of Left Wing Extremism, relevant socio-economic issues
such as land reforms, alienation of tribals from forest land etc. should be addressed
and relevant laws must be strictly enforced.
• An all-India legislation should be enacted for tackling the growing menace of
organised crime.
• Terrorism has to be fought by the security forces with the cooperation of the people.
Appropriate sensitisation training should be given to security forces for avoiding
alienation of the people and for enlisting their cooperation.
119
 Combatting Terrorism
12. (Para 5.3.4) Measures against Financing of Terrorism – Measures to Block the
flow of Funds for Financing Terrorist Activities
a. The new legal framework on terrorism may incorporate provisions
regarding freezing of assets, funds, bank accounts, deposits, cash etc.
when there is reasonable suspicion of their intended use in terrorist
activities. Such actions may be undertaken by the investigating officer
with the prior approval of a designated authority, subject to adequate
safeguards. These provisions may be incorporated in a separate chapter
in the National Security Act, 1980 as recommended in paragraph 4.1.6.9.
b. A specialized cell may be created in the proposed National Counter-
terrorism Centre drawing upon expertise from the Union Ministries of
Finance and Home Affairs and the Cabinet Secretariat for taking concerted
action on the financial leads provided from information gathered by various
sources. Further, different investigation agencies dealing with financial
transactions may setup anti-terrorist finance cells within their organizations
to augment the efforts of intelligence agencies involved in counter-
terrorism activities.
c. For speedy investigation into the financial aspects of specific cases/group
of cases related to terrorist activities, dedicated teams may be formed within
the agencies charged with the responsibility of investigating into offences
related to terrorism. This may be accomplished by inducting officers having
specialization in different aspects of financial investigation for short
periods, say three to six months. A protocol for achieving this may be
arrived at between the concerned Union and State Ministries/Departments
to facilitate such capacity building and strengthening the effectiveness of
the counter-terrorist measures.
13. (Para 7.2.6) Role of Citizens, Civil Society and Media in Combatting Terrorism
– Education
a. NCERT has proposed a scheme to encourage and support institutions,
voluntary agencies and NGOs etc. engaged with school education for
promotion of Education for Peace within the country. These initiatives
need to be encouraged with necessary funds and other material support.
b. The feasibility of extending the scheme to religious schools also needs to
be examined.
18. (Para 7.4.7) Role of Citizens, Civil Society and Media in Combatting Terrorism
– Media
a. The potential of media in spreading education and awareness needs to be
tapped to build the capacity of citizens in dealing with any public disorder,
particularly terrorist violence.
b. Media should be encouraged to evolve a self regulating code of conduct
to ensure that publicity arising out of terrorist attacks does not help the
terrorist in their anti-national designs.
118
Summary of Recommendations
Annexure-I
Recommendations made at ‘National Workshop on Public Order’
March 11th-12th, 2006
Sardar Vallabhbhai Patel National Police Academy, Hyderabad
I. Organised Violence, Terrorism & Extremism: Role of the State and Reforms
• A national forum should be set up for formulation of policy and strategy for dealing
with terrorism.
• A stable, comprehensive, all India anti-terrorist legislation, having adequate
safeguards against abuse, must be put in place.
• While terrorist violence has to be effectively dealt with by the security forces, people’s
grievances – genuine and perceived – which get exploited, have to be redressed by
concerned agencies with a sense of urgency.
• A stable, effective and responsive administration is an antidote to terrorism.
• For effectively dealing with violence, outdated laws (eg., The Explosive Act),
containing irrelevant provisions resulting in delay in investigation and prosecution
of offenders, must be amended.
• Developmental activities should be planned and executed with due regard to
problems of displacement of people, resettlement etc., so that violent eruption of
conflicts on such issues can be avoided.
• For tackling the root causes of Left Wing Extremism, relevant socio-economic issues
such as land reforms, alienation of tribals from forest land etc. should be addressed
and relevant laws must be strictly enforced.
• An all-India legislation should be enacted for tackling the growing menace of
organised crime.
• Terrorism has to be fought by the security forces with the cooperation of the people.
Appropriate sensitisation training should be given to security forces for avoiding
alienation of the people and for enlisting their cooperation.
119
 Combatting Terrorism
Annexure-II
Readings and References
Books
Bjorgo, Tore (Ed.), Root Causes of Terrorism: Myths, Reality and Ways Forward, London, Routledge,
2005
Hoffman, Bruce. Inside Terrorism, New York, Columbia University Press, 1998.
Laqueur, Walter. The New Terrorism: Fanaticism and the Arms of Mass Destruction, New York,
Oxford University Press, 2001
Lutz, James M and Brenda J. Lutz, Global Terrorism, London, Routledge, 2004
Gupta, Rakesh. Terrorism, Communalism and other Challenges to Indian Security, Delhi, Kalpaz,
2004.
Sir Robert Thompson. Defeating Communist Insurgency, 1967.
Bharagava, Pushpa M. “Biological Warfare, Bio-Terrorism, The World and Us” in Adluri
Subramanyam Raju (Ed.) Terrorism in South Asia: Views from India, New Delhi, India Research
Press, 2004.
Lal, A K Neo-Terrorism: An Indian Experience, Gyan Publishing House, New Delhi. 2005
Nath, Ravinder A. “Bio-Terrorism: A Threat to National Security” in Adluri Subramanyam
Raju (Ed.) Terrorism in South Asia: Views from India, New Delhi, India Research Press, 2004.
Latham, Robert (Ed) Bombs and Bandwidth: The Emerging Relationship Between Information
Technology and Security, New York, New Press, 2003.
Lewis, James “Cyber Terror: Missing in Action”, in David Clarke (ed), Technology and Terrorism,
London, Transaction Publishers, 2004.
Joseph, Josy, “A Comparative Study of Suicide Terrorism in Kashmir and Sri Lanka” July,
2006 – The Fletcher School, Tufts University).
Coll, Steve, “Ghost Wars”, The Penguin Press, New York, 2004
Government Document: Fact Sheet on National Counter Terrorism Centre provided by Colonce
Bill Wing, Liaison Officer, NCTC, April 2006
120
Readings and Referrences
Annexure-II Contd.
Articles
Akcam, Bahadir K. and Victor Asal, “The Dynamics of Ethnic Terrorism”, Available at:
http://www.albany.edu/cpr/sds/conf2005/proceed/papers/AKCAM225.pdf
Bjornehed, Emma. “Nacro-Terrorism: The Merger of the War on Drugs and the War on
Terror” Global Crime, Vol.6, No. 3&4, August-November, 2004. pp. 305-06
Byman, Daniel. “The Logic of Ethnic Terrorism,” Studies in Conflict and Terrorism, Vol.21,
No.2, (April-June 1998), pp. 149-169
Dandurand, Yvon and Vivienne Chin, “Links Between Terrorism and Other Forms of Crime”
A report submitted to “ Foreign Affairs Canada and The United Nations Office on Drugs
and Crime, April 2004, Available at:
http://www.icclr.law.ubc.ca/Publications/Reports/TNOC_Links_Study_Report.pdf
“Drug trafficking and the case study in nacro-terrorism” Available at:
http://www.geocities.com/dcsp2005/essay/drug_trafficking_in_case_nacro-terrorism.pdf
Lefebvre, Stephane. “Perspectives On Ethno-Nationalist/Separatist Terrorism” Conflict Studies
Research Centre, England, Available at http://www.defac.ac.uk/colleges/csrc/document-
listings/special/M29-SL.pdf
Schmid, Alex P. “Links between Terrorism and Drug Trafficking: A Case of “Nacro-terrorism”?
Available at: http://english.safe-democracy.org/causes/links-between-terrorism-and-drug-
trafficking-a-case-of-narcoterrorism.html
Archer, Toby “WMD” Terrorism: How Scared Should We Be?’ Finnish Institute of
International Affairs, May 2005, Available at: http://www.upi-fiia.fi/
document.php?DOC_ID=31
Carus, W. Seth “Defining Weapons of Mass Destruction”, Centre for the Study of Weapons
of Mass Destruction, National Defence University, Washington, Available at http://
www.ndu.edu/WMDCenter/docUploaded//OP4Carus.pdf
Chyba, Christopher F. and Alex L. Greninger, “Biotechnology and Bioterrorism: An
Unprecedented World”, Survival, Vol.46, No.2, Summer 2004, Pp.143-162.
Phillips, Michael B. “Bioterrorism: A Brief History” Department of Internal Medicine, Mayo
Clinic. Available at: http://dcmsonline.org/jax-medicine/2005journals/bioterrorism/
bioterrorism_history.pdf
121
 Combatting Terrorism
Annexure-II
Readings and References
Books
Bjorgo, Tore (Ed.), Root Causes of Terrorism: Myths, Reality and Ways Forward, London, Routledge,
2005
Hoffman, Bruce. Inside Terrorism, New York, Columbia University Press, 1998.
Laqueur, Walter. The New Terrorism: Fanaticism and the Arms of Mass Destruction, New York,
Oxford University Press, 2001
Lutz, James M and Brenda J. Lutz, Global Terrorism, London, Routledge, 2004
Gupta, Rakesh. Terrorism, Communalism and other Challenges to Indian Security, Delhi, Kalpaz,
2004.
Sir Robert Thompson. Defeating Communist Insurgency, 1967.
Bharagava, Pushpa M. “Biological Warfare, Bio-Terrorism, The World and Us” in Adluri
Subramanyam Raju (Ed.) Terrorism in South Asia: Views from India, New Delhi, India Research
Press, 2004.
Lal, A K Neo-Terrorism: An Indian Experience, Gyan Publishing House, New Delhi. 2005
Nath, Ravinder A. “Bio-Terrorism: A Threat to National Security” in Adluri Subramanyam
Raju (Ed.) Terrorism in South Asia: Views from India, New Delhi, India Research Press, 2004.
Latham, Robert (Ed) Bombs and Bandwidth: The Emerging Relationship Between Information
Technology and Security, New York, New Press, 2003.
Lewis, James “Cyber Terror: Missing in Action”, in David Clarke (ed), Technology and Terrorism,
London, Transaction Publishers, 2004.
Joseph, Josy, “A Comparative Study of Suicide Terrorism in Kashmir and Sri Lanka” July,
2006 – The Fletcher School, Tufts University).
Coll, Steve, “Ghost Wars”, The Penguin Press, New York, 2004
Government Document: Fact Sheet on National Counter Terrorism Centre provided by Colonce
Bill Wing, Liaison Officer, NCTC, April 2006
120
Readings and Referrences
Annexure-II Contd.
Articles
Akcam, Bahadir K. and Victor Asal, “The Dynamics of Ethnic Terrorism”, Available at:
http://www.albany.edu/cpr/sds/conf2005/proceed/papers/AKCAM225.pdf
Bjornehed, Emma. “Nacro-Terrorism: The Merger of the War on Drugs and the War on
Terror” Global Crime, Vol.6, No. 3&4, August-November, 2004. pp. 305-06
Byman, Daniel. “The Logic of Ethnic Terrorism,” Studies in Conflict and Terrorism, Vol.21,
No.2, (April-June 1998), pp. 149-169
Dandurand, Yvon and Vivienne Chin, “Links Between Terrorism and Other Forms of Crime”
A report submitted to “ Foreign Affairs Canada and The United Nations Office on Drugs
and Crime, April 2004, Available at:
http://www.icclr.law.ubc.ca/Publications/Reports/TNOC_Links_Study_Report.pdf
“Drug trafficking and the case study in nacro-terrorism” Available at:
http://www.geocities.com/dcsp2005/essay/drug_trafficking_in_case_nacro-terrorism.pdf
Lefebvre, Stephane. “Perspectives On Ethno-Nationalist/Separatist Terrorism” Conflict Studies
Research Centre, England, Available at http://www.defac.ac.uk/colleges/csrc/document-
listings/special/M29-SL.pdf
Schmid, Alex P. “Links between Terrorism and Drug Trafficking: A Case of “Nacro-terrorism”?
Available at: http://english.safe-democracy.org/causes/links-between-terrorism-and-drug-
trafficking-a-case-of-narcoterrorism.html
Archer, Toby “WMD” Terrorism: How Scared Should We Be?’ Finnish Institute of
International Affairs, May 2005, Available at: http://www.upi-fiia.fi/
document.php?DOC_ID=31
Carus, W. Seth “Defining Weapons of Mass Destruction”, Centre for the Study of Weapons
of Mass Destruction, National Defence University, Washington, Available at http://
www.ndu.edu/WMDCenter/docUploaded//OP4Carus.pdf
Chyba, Christopher F. and Alex L. Greninger, “Biotechnology and Bioterrorism: An
Unprecedented World”, Survival, Vol.46, No.2, Summer 2004, Pp.143-162.
Phillips, Michael B. “Bioterrorism: A Brief History” Department of Internal Medicine, Mayo
Clinic. Available at: http://dcmsonline.org/jax-medicine/2005journals/bioterrorism/
bioterrorism_history.pdf
121
 Combatting Terrorism Readings and Referrences

Annexure-II Contd. Annexure-II Contd.

Klietmann, Wolfgang F. and Kathryn L. Ruoff, “Bioterrorism: Implications for the Clinical Rathmell, Dr. Andrew. “Cyber-terrorism: The Shape of Future Conflict,” Royal United
Microbiologist” Clinical Microbiology Reviews, Vol.14, No.2, April 2001, Pp.364-381 Service Institute Journal. October, 1997.
“Introduction to Biological Weapons”, Federation of American Scientists, Available at: Rod, Stark, Cyber Terrorism: Rethinking New Technology, at http://www.infowar.com/
http://www.fas.org/biosecurity/resource/bioweapons.htm MIL_C4I/stark/ Cyber_Terrorism_Rethinking_New_Technology1.html
Schwarts, Daniel M. “Environmental Terrorism: Analyzing the Concept” Journal of Peace Tucker, David The Future of Armed Resistance: Cyberterror? Mass Destruction? Internet link
Research, Vol.35, No. 4, 1998, Pp.483-496. http://www.nps.navy.mil/ctiw/files/substate_conflict_dynamics.pdf
Taylor, Francis X. “Bioterrorism and Homeland Security” U.S. Department of State, Atlanta. Dale, Stephen “The Mappilla Outbreaks: Ideology and Social Conflict in 19th Century Kerala”
Available at: http://www.state.gov/documents/organization/25082.pdf Journal of Asian Studies, (Vol. 35, No.1, 1975), Pp. 85-98.
Uzzamman, Rasheed “WMD Terrorism in South Asia: Trends and Implications”, Available Douglas Hart and Steven Simon: “Thinking Straight and Jacking Straight: Problems of
at: http://www.sam.gov.tr/perceptions/Volume7/September-November2002/ Intelligence Analysis”; Survival (Journal of USS) Vol 48, No. Spring 2006
Perception_RashedUzZaman.pdf
Internet Resources
Putting the Tea back into Cyber Terrorism, BlackHat Briefings, Internet link https://
www.blackhat.com/presentations/bh-usa-03/bh-us-03-sensepost/bh-us-03-sensepost- The Free Dictionary
paper.pdf Wikipedia: the free encyclopedia
Denning, Dorothy E. Is Cyber Terrorism Coming?, Internet link http://www.marshall.org/pdf/ Denning, Dorothy E. Testimony before the Special Oversight Panel on Terrorism,
materials/58.pdf
Internet link http://www.cs.georgetown.edu/~denning/infosec/cyberterror
Flemming, Peter and Michael Stohi, “Myths and Realities of Cyberterrorism”, Available at:
h t t p : / / w w w. c o m m . u c s b . e d u / R e s e a r c h / M y t h s % 2 0 a n d % 2 0 R e a l i t i e s % 2 0 DCSINT Handbook 1.02, “Cyber Operations and Cyber Terrorism”,
of%20Cyberterrorism.pdf
Internet link: http://fas.org/irp/threat/terrorism/sup2.pdf
Gordon, Sarah and Richard Ford, Cyberterrorism?, Internet link http://www.symantec.com/
Websites
avcenter/reference/cyberterrorism.pdf
www.aph.gov.au
Juhnke, Deborah H. Cyber Terrorism or Cyber Crime? Internet link http://www.forensics.com/
pdf/Cyber.pdf www.en.wikipedia.org
Mitliaga, Varvara Cyber-Terrorism: A Call for Governmental Action?, Internet link http:// www.homeoffice.gov.uk
w w w. b i l e t a . a c . u k / D o c u m e n t % 2 0 L i b r a r y / 1 / C y b e r - Te r r o r i s m % 2 0 -
%20A%20Call%20for%20Governmental%20Action.pdf www.justice.gc.ca

Pollitt, Mark M. Cyberterrorism: Fact or Fancy? Internet link http://www.cs.georgetown.edu/ www.satp.org

~denning/infosec/pollitt.html www.unodc.org
Prichard, Janet J. and Laurie E. MacDonald, Cyber Terrorism: A Study of the Extent of Coverage
in Computer Security Textbooks, Internet link http://jite.org/documents/Vol3/v3p279-289-150.pdf

122 123
 Combatting Terrorism Readings and Referrences

Annexure-II Contd. Annexure-II Contd.

Klietmann, Wolfgang F. and Kathryn L. Ruoff, “Bioterrorism: Implications for the Clinical Rathmell, Dr. Andrew. “Cyber-terrorism: The Shape of Future Conflict,” Royal United
Microbiologist” Clinical Microbiology Reviews, Vol.14, No.2, April 2001, Pp.364-381 Service Institute Journal. October, 1997.
“Introduction to Biological Weapons”, Federation of American Scientists, Available at: Rod, Stark, Cyber Terrorism: Rethinking New Technology, at http://www.infowar.com/
http://www.fas.org/biosecurity/resource/bioweapons.htm MIL_C4I/stark/ Cyber_Terrorism_Rethinking_New_Technology1.html
Schwarts, Daniel M. “Environmental Terrorism: Analyzing the Concept” Journal of Peace Tucker, David The Future of Armed Resistance: Cyberterror? Mass Destruction? Internet link
Research, Vol.35, No. 4, 1998, Pp.483-496. http://www.nps.navy.mil/ctiw/files/substate_conflict_dynamics.pdf
Taylor, Francis X. “Bioterrorism and Homeland Security” U.S. Department of State, Atlanta. Dale, Stephen “The Mappilla Outbreaks: Ideology and Social Conflict in 19th Century Kerala”
Available at: http://www.state.gov/documents/organization/25082.pdf Journal of Asian Studies, (Vol. 35, No.1, 1975), Pp. 85-98.
Uzzamman, Rasheed “WMD Terrorism in South Asia: Trends and Implications”, Available Douglas Hart and Steven Simon: “Thinking Straight and Jacking Straight: Problems of
at: http://www.sam.gov.tr/perceptions/Volume7/September-November2002/ Intelligence Analysis”; Survival (Journal of USS) Vol 48, No. Spring 2006
Perception_RashedUzZaman.pdf
Internet Resources
Putting the Tea back into Cyber Terrorism, BlackHat Briefings, Internet link https://
www.blackhat.com/presentations/bh-usa-03/bh-us-03-sensepost/bh-us-03-sensepost- The Free Dictionary
paper.pdf Wikipedia: the free encyclopedia
Denning, Dorothy E. Is Cyber Terrorism Coming?, Internet link http://www.marshall.org/pdf/ Denning, Dorothy E. Testimony before the Special Oversight Panel on Terrorism,
materials/58.pdf
Internet link http://www.cs.georgetown.edu/~denning/infosec/cyberterror
Flemming, Peter and Michael Stohi, “Myths and Realities of Cyberterrorism”, Available at:
h t t p : / / w w w. c o m m . u c s b . e d u / R e s e a r c h / M y t h s % 2 0 a n d % 2 0 R e a l i t i e s % 2 0 DCSINT Handbook 1.02, “Cyber Operations and Cyber Terrorism”,
of%20Cyberterrorism.pdf
Internet link: http://fas.org/irp/threat/terrorism/sup2.pdf
Gordon, Sarah and Richard Ford, Cyberterrorism?, Internet link http://www.symantec.com/
Websites
avcenter/reference/cyberterrorism.pdf
www.aph.gov.au
Juhnke, Deborah H. Cyber Terrorism or Cyber Crime? Internet link http://www.forensics.com/
pdf/Cyber.pdf www.en.wikipedia.org
Mitliaga, Varvara Cyber-Terrorism: A Call for Governmental Action?, Internet link http:// www.homeoffice.gov.uk
w w w. b i l e t a . a c . u k / D o c u m e n t % 2 0 L i b r a r y / 1 / C y b e r - Te r r o r i s m % 2 0 -
%20A%20Call%20for%20Governmental%20Action.pdf www.justice.gc.ca

Pollitt, Mark M. Cyberterrorism: Fact or Fancy? Internet link http://www.cs.georgetown.edu/ www.satp.org

~denning/infosec/pollitt.html www.unodc.org
Prichard, Janet J. and Laurie E. MacDonald, Cyber Terrorism: A Study of the Extent of Coverage
in Computer Security Textbooks, Internet link http://jite.org/documents/Vol3/v3p279-289-150.pdf

122 123
124
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive
Activities (Prevention) Act,
1987
1. Extent Whole of India
2. Application “also applies to” :
a. to citizens of India outside
India;
b. to persons in the service of
the Government, wherever
they may be; and
c. to persons on ships and air-
craft registered in India, wher-
ever they may be.
(Section 1(2)
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive
Activities (Prevention) Act,
1987
3. Definition of Section 3(1): Whoever with
Terrorism Act intent to overawe the Gov-
ernment as by law established
or to strike terror in the people
or any section of the people
or to alienate any section of
the people or to adversely af-
fect the harmony amongst dif-
ferent sections of the people
does any act or thing by using
bombs, dynamite or other ex-
plosive substances or inflam-
mable substances or lethal
weapons or poisons or nox-
ious gases or other chemicals
or by any other substances
(whether biological or other-
wise) of a hazardous nature in
such a manner as to cause, or
as is likely to cause, death of,
or injuries to, any person or
persons or loss of, or damage
to, or destruction of, property
125
The Prevention of Terrorism
Bill, 2000 (Draft Bill as
recommended by the Law
Commission of India)
A. DEFINITIONS
Whole of India
Same as TADA
The Prevention of Terrorism
Bill, 2000 (Draft Bill as
recommended by the Law
Commission of India)
Section 3(1): whoever, - (a)
with intent to threaten the
unity, integrity, security or
sovereignty of India or to
strike terror in the people or
any section of the people does
any act or thing by using
bombs, dynamite or other
explosive substances or
inflammable substances or fire
arms or other lethal weapons
or poisons or noxious gases or
other chemicals or by any
other substances (whether
biological or otherwise) of a
hazardous nature, in such a
manner as to cause, or likely
to cause, death of, or injuries
to any person or persons or
loss of, or damage to, or
destruction of, property or
distribution of any supplies or
services essential to the life of
The Prevention of
Terrorism Act, 2002
Whole of India
Apart from this provision,
it also mentions:
Sec.1 (3) Every person
shall be liable to
punishment under this
Act for every act or
omission contrary to the
provisions thereof, of
which he is held guilty in
India.
(4) Any person who
commits an offence
beyond India which is
punishable under this
Act shall be dealt with
according to the
provisions of this Act in
the same manner as if
such act had been
committed in India.
The Prevention of
Terrorism Act, 2002
Same as Law Commission
Draft Bill. It adds the
following: (1) The phrase ‘or
by any other means
whatsoever’ in Section
3(1)(a) and (2) adds an
explanation to Section 3(1)
which extends the meaning
of a terrorist act to include
the act of raising funds
intended for the purpose of
terrorism.
Annexure-IV(1)
The Unlawful Activities
(Prevention) Amendment
Act, 2004
Whole of India
Same as POTA, 2002
Combatting Terrorism
Annexure-IV(1) Contd.
The Unlawful Activities
(Prevention) Amendment
Act, 2004
Section 15: Terrorist Act -
Whoever, with intent to
threaten the unity, integrity,
security or sovereignty of India
or to strike terror in the people
or any section of the people in
India or in any foreign country,
does any act by using bombs,
dynamite or other explosive
substances or inflammable
substances or firearms or other
lethal weapons or poisons or
noxious gases or other
chemicals or by any other
Comparison of Anti-Terrorism Legislations in India
substances (whether biological
or otherwise) of a hazardous
nature, in such a manner as to
cause, or likely to cause, death
of, or injuries to any person or
persons or loss of, or damage
to, or destruction of, property
or disruption of any supplies or
services essential to the life of
124
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive
Activities (Prevention) Act,
1987
1. Extent Whole of India
2. Application “also applies to” :
a. to citizens of India outside
India;
b. to persons in the service of
the Government, wherever
they may be; and
c. to persons on ships and air-
craft registered in India, wher-
ever they may be.
(Section 1(2)
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive
Activities (Prevention) Act,
1987
3. Definition of Section 3(1): Whoever with
Terrorism Act intent to overawe the Gov-
ernment as by law established
or to strike terror in the people
or any section of the people
or to alienate any section of
the people or to adversely af-
fect the harmony amongst dif-
ferent sections of the people
does any act or thing by using
bombs, dynamite or other ex-
plosive substances or inflam-
mable substances or lethal
weapons or poisons or nox-
ious gases or other chemicals
or by any other substances
(whether biological or other-
wise) of a hazardous nature in
such a manner as to cause, or
as is likely to cause, death of,
or injuries to, any person or
persons or loss of, or damage
to, or destruction of, property
125
The Prevention of Terrorism
Bill, 2000 (Draft Bill as
recommended by the Law
Commission of India)
A. DEFINITIONS
Whole of India
Same as TADA
The Prevention of Terrorism
Bill, 2000 (Draft Bill as
recommended by the Law
Commission of India)
Section 3(1): whoever, - (a)
with intent to threaten the
unity, integrity, security or
sovereignty of India or to
strike terror in the people or
any section of the people does
any act or thing by using
bombs, dynamite or other
explosive substances or
inflammable substances or fire
arms or other lethal weapons
or poisons or noxious gases or
other chemicals or by any
other substances (whether
biological or otherwise) of a
hazardous nature, in such a
manner as to cause, or likely
to cause, death of, or injuries
to any person or persons or
loss of, or damage to, or
destruction of, property or
distribution of any supplies or
services essential to the life of
The Prevention of
Terrorism Act, 2002
Whole of India
Apart from this provision,
it also mentions:
Sec.1 (3) Every person
shall be liable to
punishment under this
Act for every act or
omission contrary to the
provisions thereof, of
which he is held guilty in
India.
(4) Any person who
commits an offence
beyond India which is
punishable under this
Act shall be dealt with
according to the
provisions of this Act in
the same manner as if
such act had been
committed in India.
The Prevention of
Terrorism Act, 2002
Same as Law Commission
Draft Bill. It adds the
following: (1) The phrase ‘or
by any other means
whatsoever’ in Section
3(1)(a) and (2) adds an
explanation to Section 3(1)
which extends the meaning
of a terrorist act to include
the act of raising funds
intended for the purpose of
terrorism.
Annexure-IV(1)
The Unlawful Activities
(Prevention) Amendment
Act, 2004
Whole of India
Same as POTA, 2002
Combatting Terrorism
Annexure-IV(1) Contd.
The Unlawful Activities
(Prevention) Amendment
Act, 2004
Section 15: Terrorist Act -
Whoever, with intent to
threaten the unity, integrity,
security or sovereignty of India
or to strike terror in the people
or any section of the people in
India or in any foreign country,
does any act by using bombs,
dynamite or other explosive
substances or inflammable
substances or firearms or other
lethal weapons or poisons or
noxious gases or other
chemicals or by any other
Comparison of Anti-Terrorism Legislations in India
substances (whether biological
or otherwise) of a hazardous
nature, in such a manner as to
cause, or likely to cause, death
of, or injuries to any person or
persons or loss of, or damage
to, or destruction of, property
or disruption of any supplies or
services essential to the life of
126
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive
Activities (Prevention) Act,
1987
or disruption of any supplies
or services essential to the life
of the community, or detains
any person and threatens to
kill or injure such person in
order to compel the Govern-
ment or any other person to
do or abstain from doing any
act, commits a terrorist act.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of anti-terrorism legislations in India
Sl.No Item Terrorism and Disruptive
Activities (Prevention) Act,
1987
B. ENHANCED PUNISHMENTS
1. Punishment, if Death or imprisonment
terrorist act has for life and also liable to fine
resulted in the [Section 3(2)(i)]
death of any
person
127
The Prevention of Terrorism
Bill, 2000 (Draft Bill as
recommended by the Law
Commission of India)
the community or causes
damage or destruction of any
property or equipment used
or intended to be used for the
defence of India or in
connection with any other
purposes of the Government
of India, any State
Government or any of their
agencies, or detains any person
and threatens to kill or injure
such person in order to compel
the Government or any other
person to do or abstain from
doing any act;
(b) is or continues to be a
member of an association
declared Unlawful Activities
(Prevention) Act, 1967, or
voluntarily does an act aiding
or promoting in any manner
the objects of such association
and in either case is in
The Prevention of Terrorism
Bill, 2000 (Draft Bill as
recommended by the Law
Commission of India)
possession of any unlicenced
firearms, ammunition,
explosive or other instrument
or substance capable of
causing mass destruction and
commits any act resulting in
loss of human life or grievous
injury to any person or causes
significant damage to any
property, commits a terrorist
act.
Same as TADA
Annexure-IV(1) Contd.
The Prevention of The Unlawful Activities
Terrorism Act, 2002 (Prevention) Amendment
Act, 2004
the community in India or in
any foreign country or causes
damage or destruction of any
property or equipment used or
intended to be used for the
defence of India or in
connection with any other
purposes of the Government of
India, any State Government or
any of their agencies, or detains
Combatting Terrorism
any person and threatens to kill
or injure such person in order
to compel the Government in
India or the Government of a
foreign country or any other
person to do or abstain from
doing any act, commits a
terrorist act.
(The phrase in emphasis is new.
However, the provisions
pertaining to associations
declared Unlawful under the
Annexure-IV(1) Contd.
The Prevention of The Unlawful Activities
Terrorism Act, 2002 (Prevention) Amendment
Act, 2004
ULPA, 1967 as included in
Section 3(1)(b) of POTA, 2002
have been excluded. Further,
the explanation to Section 3(1)
of POTA, 2002 is also missing
which includes the raising of
funds for the purpose of
terrorism as a terrorist act.
Comparison of Anti-Terrorism Legislations in India
Same as TADA Same as TADA
126
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive
Activities (Prevention) Act,
1987
or disruption of any supplies
or services essential to the life
of the community, or detains
any person and threatens to
kill or injure such person in
order to compel the Govern-
ment or any other person to
do or abstain from doing any
act, commits a terrorist act.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of anti-terrorism legislations in India
Sl.No Item Terrorism and Disruptive
Activities (Prevention) Act,
1987
B. ENHANCED PUNISHMENTS
1. Punishment, if Death or imprisonment
terrorist act has for life and also liable to fine
resulted in the [Section 3(2)(i)]
death of any
person
127
The Prevention of Terrorism
Bill, 2000 (Draft Bill as
recommended by the Law
Commission of India)
the community or causes
damage or destruction of any
property or equipment used
or intended to be used for the
defence of India or in
connection with any other
purposes of the Government
of India, any State
Government or any of their
agencies, or detains any person
and threatens to kill or injure
such person in order to compel
the Government or any other
person to do or abstain from
doing any act;
(b) is or continues to be a
member of an association
declared Unlawful Activities
(Prevention) Act, 1967, or
voluntarily does an act aiding
or promoting in any manner
the objects of such association
and in either case is in
The Prevention of Terrorism
Bill, 2000 (Draft Bill as
recommended by the Law
Commission of India)
possession of any unlicenced
firearms, ammunition,
explosive or other instrument
or substance capable of
causing mass destruction and
commits any act resulting in
loss of human life or grievous
injury to any person or causes
significant damage to any
property, commits a terrorist
act.
Same as TADA
Annexure-IV(1) Contd.
The Prevention of The Unlawful Activities
Terrorism Act, 2002 (Prevention) Amendment
Act, 2004
the community in India or in
any foreign country or causes
damage or destruction of any
property or equipment used or
intended to be used for the
defence of India or in
connection with any other
purposes of the Government of
India, any State Government or
any of their agencies, or detains
Combatting Terrorism
any person and threatens to kill
or injure such person in order
to compel the Government in
India or the Government of a
foreign country or any other
person to do or abstain from
doing any act, commits a
terrorist act.
(The phrase in emphasis is new.
However, the provisions
pertaining to associations
declared Unlawful under the
Annexure-IV(1) Contd.
The Prevention of The Unlawful Activities
Terrorism Act, 2002 (Prevention) Amendment
Act, 2004
ULPA, 1967 as included in
Section 3(1)(b) of POTA, 2002
have been excluded. Further,
the explanation to Section 3(1)
of POTA, 2002 is also missing
which includes the raising of
funds for the purpose of
terrorism as a terrorist act.
Comparison of Anti-Terrorism Legislations in India
Same as TADA Same as TADA
128
Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)

2. Punishment, for Imprisonment for a term not Same as TADA Same as TADA Same as TADA
committing a less than five years which may
‘terrorist act’ in a extend to imprisonment for
case other than that life and also liable to fine.
resulting in the
death of any
person.

3. Punishment in case imprisonment for a term not Same as TADA Same as TADA Same as TADA
of Whoever less than five years which may
Combatting Terrorism

conspires or extend to life term and also

attempts to liable to fine.
commit, or
advocates, abets,
advises or incites or
knowingly
facilitates the
commission of, a
terrorist act or any
act preparatory to
a terrorist act,

Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)

4. Punishment for Imprisonment for five years Imprisonment for three years Same as Law Commission Same as POTA, 2002
harbouring or extending to life term and also extending to life term and also Draft Bill.
concealing any liable to fine. liable to fine.
other person etc.
5. Punishment for Imprisonment for five years Same as TADA Minimum punishment not Minimum punishment not
being a member extending to life term and also mentioned, term may extend mentioned, term may extend
of a terrorist gang liable to fine. to life imprisonment or with to life imprisonment and also
or a terrorist fine which may extend to liable to fine.
organisation rupees ten lakh or with both.
involved in
terrorist acts.
6. Punishment for imprisonment for five years Same as TADA Punishment is for ‘know- Same as POTA, 2002, except
holding property extending to life term and also ingly” holding such prop- that there is a mandatory fine
Comparison of Anti-Terrorism Legislations in India

dervied or liable to fine. erty; minimum term not for which minimum limit is not
obtained from prescribed, imprisonment prescribed.
Commission of may extend for life or with
any terrorist act fine which may extend to
or acquired rupees ten lakh or with both.
through terrorist
funds.
129
128
Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)

2. Punishment, for Imprisonment for a term not Same as TADA Same as TADA Same as TADA
committing a less than five years which may
‘terrorist act’ in a extend to imprisonment for
case other than that life and also liable to fine.
resulting in the
death of any
person.

3. Punishment in case imprisonment for a term not Same as TADA Same as TADA Same as TADA
of Whoever less than five years which may
Combatting Terrorism

conspires or extend to life term and also

attempts to liable to fine.
commit, or
advocates, abets,
advises or incites or
knowingly
facilitates the
commission of, a
terrorist act or any
act preparatory to
a terrorist act,

Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)

4. Punishment for Imprisonment for five years Imprisonment for three years Same as Law Commission Same as POTA, 2002
harbouring or extending to life term and also extending to life term and also Draft Bill.
concealing any liable to fine. liable to fine.
other person etc.
5. Punishment for Imprisonment for five years Same as TADA Minimum punishment not Minimum punishment not
being a member extending to life term and also mentioned, term may extend mentioned, term may extend
of a terrorist gang liable to fine. to life imprisonment or with to life imprisonment and also
or a terrorist fine which may extend to liable to fine.
organisation rupees ten lakh or with both.
involved in
terrorist acts.
6. Punishment for imprisonment for five years Same as TADA Punishment is for ‘know- Same as POTA, 2002, except
holding property extending to life term and also ingly” holding such prop- that there is a mandatory fine
Comparison of Anti-Terrorism Legislations in India

dervied or liable to fine. erty; minimum term not for which minimum limit is not
obtained from prescribed, imprisonment prescribed.
Commission of may extend for life or with
any terrorist act fine which may extend to
or acquired rupees ten lakh or with both.
through terrorist
funds.
129
130
Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)

7. Punishment for Nil. Imprisonment extending to Imprisonment extending to Imprisonment extending to

threatening three years and fine. three years and fine. three years and fine.
a witness or in a
person whom a
witness may be
interested.
8. Punishment for Nil. Imprisonment for a term Nil. Nil.
not disclosing any extending to one year or fine
information to the or both.
Combatting Terrorism

police which a
person knows to
be of assistance in
preventing a
terrorist act or
apprehending etc.
a person involved
in such an act.
9. Possession Imprisonment for a term not Same as TADA Further elaborations Imprisonment for a term not
of certain less than five years extending with regard to explosive less than five years extending
unauthorised to life term and also liable to to life term and also liable to
fine. For abetment etc. the
and hazardous
arms in certain substances; applicable fine. For abetment same.
areas. reference to life term is
construed as ten years. to areas which have not

Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)

been notified; but

minimum punishment
not prescribed,
punishment may
be for imprisonment
extending to life term
or with fine extending
to rupees ten lakh
or with both. For
abetment same
10. Punishment for Nil. Nil. Raising of funds intended Imprisonment for a term
raising fund for for the purpose of terrorism not less than five years
terrorist act. is included in the definition extending to life term and
Comparison of Anti-Terrorism Legislations in India

of ‘a terrorist act’. also liable to fine.

C. INVESTIGATING OFFICERS AND THEIR POWERS

1. Investigating Apart from officers authorised
officers. under the Cr.PC, the Central
Government may by
notification confer on any
officer of the Central
131
Clause 32: Notwith-standing Similar provisions as in Similar provision as in the
anything contained in the previous column (Section previous column (Section 43)
Code, no police officer below 51)
the rank -
(a) in the case of the Delhi
Special Police Establishment,
130
Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)

7. Punishment for Nil. Imprisonment extending to Imprisonment extending to Imprisonment extending to

threatening three years and fine. three years and fine. three years and fine.
a witness or in a
person whom a
witness may be
interested.
8. Punishment for Nil. Imprisonment for a term Nil. Nil.
not disclosing any extending to one year or fine
information to the or both.
Combatting Terrorism

police which a
person knows to
be of assistance in
preventing a
terrorist act or
apprehending etc.
a person involved
in such an act.
9. Possession Imprisonment for a term not Same as TADA Further elaborations Imprisonment for a term not
of certain less than five years extending with regard to explosive less than five years extending
unauthorised to life term and also liable to to life term and also liable to
fine. For abetment etc. the
and hazardous
arms in certain substances; applicable fine. For abetment same.
areas. reference to life term is
construed as ten years. to areas which have not

Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)

been notified; but

minimum punishment
not prescribed,
punishment may
be for imprisonment
extending to life term
or with fine extending
to rupees ten lakh
or with both. For
abetment same
10. Punishment for Nil. Nil. Raising of funds intended Imprisonment for a term
raising fund for for the purpose of terrorism not less than five years
terrorist act. is included in the definition extending to life term and
Comparison of Anti-Terrorism Legislations in India

of ‘a terrorist act’. also liable to fine.

C. INVESTIGATING OFFICERS AND THEIR POWERS

1. Investigating Apart from officers authorised
officers. under the Cr.PC, the Central
Government may by
notification confer on any
officer of the Central
131
Clause 32: Notwith-standing Similar provisions as in Similar provision as in the
anything contained in the previous column (Section previous column (Section 43)
Code, no police officer below 51)
the rank -
(a) in the case of the Delhi
Special Police Establishment,
132
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive
Activities (Prevention) Act,
1987
Government the powers
exercisable by a police officer
under the Cr.PC and all
officers of police and the
government are required to
assist him.
2. Powers of Section 7-A :If an officer
investigating investigating an offence
officer regarding committed under this Act has
attachment and reason to believe that any
seizure of property property in relation to which
an investigation is being
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive
Activities (Prevention) Act,
1987
conducted is a property
derived or obtained from the
commission of any terrorist act
and includes proceeds of
terrorism he shall, with the
approval of the Superintendent
of Police, make an order seizing
such property and where it is
not practicable to seize such
property, he may make an
order of attachment directing
that such property shall not be
transferred or otherwise dealt
with except with the prior
permission of the officer
making such order, or of the
Designated Court and a copy
of such order shall be served
on the persons concerned :
Provided that the investigating
officer shall duly inform the
Designated Court within
forty-eight hours of the
attachment of such property
and the said Court shall either
133
The Prevention of Terrorism
Bill, 2000 (Draft Bill as
recommended by the Law
Commission of India)
of a Deputy Superintendent
of Police or a police officer of
equivalent rank;
(b) in the metropolitan areas
of Mumbai, Calcutta, Chennai
and Ahmedabad and any
other metropolitan area
notified as such under sub-
section (1) of section 8 of the
Code, of an Assistant
Commissioner of Police;
(c) in any other case not
relatable to clause (a) or clause
(b), of a Deputy Superin-
tendent of Police or a police
officer of equivalent rank, shall
investigate any offence
punishable under this Act.
Section 7(1) - If an officer (not
below the rank of
Superintendent of Police)
investigating an offence
committed under this Act,
has reason to believe that any
The Prevention of Terrorism
Bill, 2000 (Draft Bill as
recommended by the Law
Commission of India)
property in relation to which
an investigation is being
conducted, constitutes
proceeds of terrorism, he shall,
with the prior approval in
writing of the Director
General of Police of the State
in which such property is
situated, make an order seizing
such property and where it is
not practicable to seize such
property, make an order of
attachment directing that such
property shall not be
transferred or otherwise dealt
with except with the prior
permission of the officer
making such order, or of the
Designated Authority, or the
Special Court, as the case may
be, before whom the
properties seized or attached
are produced and a copy of
such order shall be served on
the person concerned.
The Prevention of
Terrorism Act, 2002
Generally, the provisions are
similar to that of the Law
Commission Draft Bill. The
new provisions are as
(1) The designation of the
follows:
officer passing the order of
(1) Section 7(2):For the seizure or attachment is not
The Prevention of
Terrorism Act, 2002
removal of doubts, it is
hereby provided that where
an organisation is declared as
a terrorist organisation under
this Act and the
investigating officer has
reason to believe that any
person has custody of any
property which is being used
or is intended to be used for
the purpose of such terrorist
organisation, he may, by an
order in writing, seize or
attach such property.
(2) Section 7(4): It shall be
open to the Designated
Authority before whom the
seized or attached properties
are produced either to
confirm or revoke the order
of attachment so issued:
Provided that an
opportunity of making a
representation by the person
whose property is being
Annexure-IV(1) Contd.
The Unlawful Activities
(Prevention) Amendment
Act, 2004
Combatting Terrorism
Generally, the provisions are
similar to that of POTA, 2002
except the following:
Annexure-IV(1) Contd.
The Unlawful Activities
(Prevention) Amendment
Act, 2004
mentioned, thereby meaning
that officers mentioned in
Section 43 of the Act are
authorised to pass such orders.
(2) Provisions regarding
property used or intended to be
used for the purpose of the
terrorist organisation as
appearing in Section 7(2) of
POTA, 2002 are not included.
(3) The Designated Authority
has to either confirm or revoke
the order of seizure or
attachment within a period of
Comparison of Anti-Terrorism Legislations in India
sixty days from the date of
production of a copy of such
order before it.
(4) The person aggrieved by an
order of the designated
authority may prefer an appeal
to the court within a period of
thirty days from the date of
receipt of the order. The term
‘Court’ has been defined to
132
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive
Activities (Prevention) Act,
1987
Government the powers
exercisable by a police officer
under the Cr.PC and all
officers of police and the
government are required to
assist him.
2. Powers of Section 7-A :If an officer
investigating investigating an offence
officer regarding committed under this Act has
attachment and reason to believe that any
seizure of property property in relation to which
an investigation is being
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive
Activities (Prevention) Act,
1987
conducted is a property
derived or obtained from the
commission of any terrorist act
and includes proceeds of
terrorism he shall, with the
approval of the Superintendent
of Police, make an order seizing
such property and where it is
not practicable to seize such
property, he may make an
order of attachment directing
that such property shall not be
transferred or otherwise dealt
with except with the prior
permission of the officer
making such order, or of the
Designated Court and a copy
of such order shall be served
on the persons concerned :
Provided that the investigating
officer shall duly inform the
Designated Court within
forty-eight hours of the
attachment of such property
and the said Court shall either
133
The Prevention of Terrorism
Bill, 2000 (Draft Bill as
recommended by the Law
Commission of India)
of a Deputy Superintendent
of Police or a police officer of
equivalent rank;
(b) in the metropolitan areas
of Mumbai, Calcutta, Chennai
and Ahmedabad and any
other metropolitan area
notified as such under sub-
section (1) of section 8 of the
Code, of an Assistant
Commissioner of Police;
(c) in any other case not
relatable to clause (a) or clause
(b), of a Deputy Superin-
tendent of Police or a police
officer of equivalent rank, shall
investigate any offence
punishable under this Act.
Section 7(1) - If an officer (not
below the rank of
Superintendent of Police)
investigating an offence
committed under this Act,
has reason to believe that any
The Prevention of Terrorism
Bill, 2000 (Draft Bill as
recommended by the Law
Commission of India)
property in relation to which
an investigation is being
conducted, constitutes
proceeds of terrorism, he shall,
with the prior approval in
writing of the Director
General of Police of the State
in which such property is
situated, make an order seizing
such property and where it is
not practicable to seize such
property, make an order of
attachment directing that such
property shall not be
transferred or otherwise dealt
with except with the prior
permission of the officer
making such order, or of the
Designated Authority, or the
Special Court, as the case may
be, before whom the
properties seized or attached
are produced and a copy of
such order shall be served on
the person concerned.
The Prevention of
Terrorism Act, 2002
Generally, the provisions are
similar to that of the Law
Commission Draft Bill. The
new provisions are as
(1) The designation of the
follows:
officer passing the order of
(1) Section 7(2):For the seizure or attachment is not
The Prevention of
Terrorism Act, 2002
removal of doubts, it is
hereby provided that where
an organisation is declared as
a terrorist organisation under
this Act and the
investigating officer has
reason to believe that any
person has custody of any
property which is being used
or is intended to be used for
the purpose of such terrorist
organisation, he may, by an
order in writing, seize or
attach such property.
(2) Section 7(4): It shall be
open to the Designated
Authority before whom the
seized or attached properties
are produced either to
confirm or revoke the order
of attachment so issued:
Provided that an
opportunity of making a
representation by the person
whose property is being
Annexure-IV(1) Contd.
The Unlawful Activities
(Prevention) Amendment
Act, 2004
Combatting Terrorism
Generally, the provisions are
similar to that of POTA, 2002
except the following:
Annexure-IV(1) Contd.
The Unlawful Activities
(Prevention) Amendment
Act, 2004
mentioned, thereby meaning
that officers mentioned in
Section 43 of the Act are
authorised to pass such orders.
(2) Provisions regarding
property used or intended to be
used for the purpose of the
terrorist organisation as
appearing in Section 7(2) of
POTA, 2002 are not included.
(3) The Designated Authority
has to either confirm or revoke
the order of seizure or
attachment within a period of
Comparison of Anti-Terrorism Legislations in India
sixty days from the date of
production of a copy of such
order before it.
(4) The person aggrieved by an
order of the designated
authority may prefer an appeal
to the court within a period of
thirty days from the date of
receipt of the order. The term
‘Court’ has been defined to
134
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism
Activities (Prevention) Act, Bill, 2000 (Draft Bill as
1987 recommended by the Law
Commission of India)
confirm or revoke the order (2) The investigating officer
of attachment so issued. shall duly inform the
Designated Authority or, as the
case may be, the Special Court,
within forty-eight hours of the
seizure or attachment of such
property.
(3) It shall be open to the
Designated Authority or the
Special Court before whom
the seized or attached
properties are produced either
to confirm or revoke the order
of attachment so issued.
(Thus the power of making
an order of seizure or
attachment has been given to
an officer not below the rank
of an SP. The approval has to
be obtained from the DGP of
the State).
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism
Activities (Prevention) Act, Bill, 2000 (Draft Bill as
1987 recommended by the Law
Commission of India)
135
Annexure-IV(1) Contd.
The Prevention of The Unlawful Activities
Terrorism Act, 2002 (Prevention) Amendment
Act, 2004
attached shall be given. mean a criminal court having
jurisdiction under the CrPC to
(3) Section 7(6): The
try offences under this Act.
investigating officer may
seize and detain any cash to
which this Chapter applies
if he has reasonable grounds
for suspecting that—
(a) it is intended to be used
for the purposes of
terrorism;
Combatting Terrorism
(b) it forms the whole or
part of the resources of an
organisation declared as
terrorist organisation under
this Act:
Provided that the cash seized
under this sub-section by the
investigating officer shall be
released not later than the
period of forty-eight hours
beginning with the time
when it is seized unless the
matter involving the cash is
before the Designated
Annexure-IV(1) Contd.
The Prevention of The Unlawful Activities
Terrorism Act, 2002 (Prevention) Amendment
Act, 2004
Authority and such
Authority passes an order
allowing its retention
beyond forty-eight hours.
Explanation.—For the
purposes of this sub-section,
“cash” means—
(a) coins and notes in any
currency;
(b) postal orders;
(c) traveller’s cheques;
(d) banker’s drafts; and
(e) such other monetary
instruments as the Central
Government or, as the case
Comparison of Anti-Terrorism Legislations in India
may be, the State
Government may specify by
an order made in writing.
(4) Further, provision for
appeal against the order by
the designated authority is
also provided in the form of
Section 7(7):
134
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism
Activities (Prevention) Act, Bill, 2000 (Draft Bill as
1987 recommended by the Law
Commission of India)
confirm or revoke the order (2) The investigating officer
of attachment so issued. shall duly inform the
Designated Authority or, as the
case may be, the Special Court,
within forty-eight hours of the
seizure or attachment of such
property.
(3) It shall be open to the
Designated Authority or the
Special Court before whom
the seized or attached
properties are produced either
to confirm or revoke the order
of attachment so issued.
(Thus the power of making
an order of seizure or
attachment has been given to
an officer not below the rank
of an SP. The approval has to
be obtained from the DGP of
the State).
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism
Activities (Prevention) Act, Bill, 2000 (Draft Bill as
1987 recommended by the Law
Commission of India)
135
Annexure-IV(1) Contd.
The Prevention of The Unlawful Activities
Terrorism Act, 2002 (Prevention) Amendment
Act, 2004
attached shall be given. mean a criminal court having
jurisdiction under the CrPC to
(3) Section 7(6): The
try offences under this Act.
investigating officer may
seize and detain any cash to
which this Chapter applies
if he has reasonable grounds
for suspecting that—
(a) it is intended to be used
for the purposes of
terrorism;
Combatting Terrorism
(b) it forms the whole or
part of the resources of an
organisation declared as
terrorist organisation under
this Act:
Provided that the cash seized
under this sub-section by the
investigating officer shall be
released not later than the
period of forty-eight hours
beginning with the time
when it is seized unless the
matter involving the cash is
before the Designated
Annexure-IV(1) Contd.
The Prevention of The Unlawful Activities
Terrorism Act, 2002 (Prevention) Amendment
Act, 2004
Authority and such
Authority passes an order
allowing its retention
beyond forty-eight hours.
Explanation.—For the
purposes of this sub-section,
“cash” means—
(a) coins and notes in any
currency;
(b) postal orders;
(c) traveller’s cheques;
(d) banker’s drafts; and
(e) such other monetary
instruments as the Central
Government or, as the case
Comparison of Anti-Terrorism Legislations in India
may be, the State
Government may specify by
an order made in writing.
(4) Further, provision for
appeal against the order by
the designated authority is
also provided in the form of
Section 7(7):
136
Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)

Any person aggrieved by an

order made by the
Designated Authority may
prefer an appeal to the
Special Court and the Special
Court may either confirm
the order of attachment of
property or seizure so made
or revoke such order and
release the property.
Combatting Terrorism

Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)

3. Power to direct for No such provision Clause 22: (1) When a police Similar provisions as in the No such provision
samples etc. officer investigating a case previous column (Section
requests the Court of a Chief 27).
Judicial Magistrate or the
Court of a Chief Metropolitan
Magistrate in writing for
obtaining samples of
handwriting, finger prints,
foot prints, photographs,
blood, saliva, semen, hair,
voice of any accused person,
reasonably suspected to be
involved in the commission of
an offence under this Act, it
Comparison of Anti-Terrorism Legislations in India

shall be lawful for the Court

of a Chief Metropolitan
Magistrate to direct that such
samples be given by the
accused person to the police
officer either through a
medical practitioner or
otherwise, as the case may be.
137
136
Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)

Any person aggrieved by an

order made by the
Designated Authority may
prefer an appeal to the
Special Court and the Special
Court may either confirm
the order of attachment of
property or seizure so made
or revoke such order and
release the property.
Combatting Terrorism

Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)

3. Power to direct for No such provision Clause 22: (1) When a police Similar provisions as in the No such provision
samples etc. officer investigating a case previous column (Section
requests the Court of a Chief 27).
Judicial Magistrate or the
Court of a Chief Metropolitan
Magistrate in writing for
obtaining samples of
handwriting, finger prints,
foot prints, photographs,
blood, saliva, semen, hair,
voice of any accused person,
reasonably suspected to be
involved in the commission of
an offence under this Act, it
Comparison of Anti-Terrorism Legislations in India

shall be lawful for the Court

of a Chief Metropolitan
Magistrate to direct that such
samples be given by the
accused person to the police
officer either through a
medical practitioner or
otherwise, as the case may be.
137
138
Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)

(2) If any accused person

refuses to give samples as
provided in sub-section (1), in
a trial under this Act, the court
shall draw adverse inference
against the accused.

D. FORFEITURE OF PROCEEDS OF TERRORISM

1. For feiture No separate provision. Clause 8: Where any property Similar provisions except, in Similar provisions as POTA,
Combatting Terrorism

of proceeds of Omnibus provision (Section 8). is seized or attached in the
terrorism belief that it constitutes
proceeds of terrorism and is
produced before the
Designated Authority, it shall,
on being satisfied that the said
property constitutes proceeds
of terrorism, order forfeiture
of such property, whether or
not the person from whose
possession it is seized or
attached, is prosecuted in a
Special Court for an offence
case of Designated
Authority the powers are
with the Special Court.
Appeal lies with the
jurisdictional High Court.
2002 except the powers are, in
this case with the Court. The
term ‘Court’ has been defined
to mean a criminal court having
jurisdiction under the Cr.PC to
try offences under this Act.
Accordingly, the appeal lies
with the jurisdictional High
Court.

Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)

under this Act. Clause 9

provides for a show cause has
to be issued in writing before
making any order forfeiting
proceeds of terrorism. If the
person establishes that he is a
bona fide transferee of such
proceeds without knowing
that they represent proceeds
of terrorism, order of
forfeiture cannot be made. In
case of perishable property the
Designated Authority may
direct to be sold and the
Comparison of Anti-Terrorism Legislations in India

provisions of Section 459 of

the CrPC shall generally apply.
In case of other properties it
may nominate any officer of
the Central or State
Government to perform the
function of the administrator
of such property. As per clause
10 appeal lies with the
139
138
Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)

(2) If any accused person

refuses to give samples as
provided in sub-section (1), in
a trial under this Act, the court
shall draw adverse inference
against the accused.

D. FORFEITURE OF PROCEEDS OF TERRORISM

1. For feiture No separate provision. Clause 8: Where any property Similar provisions except, in Similar provisions as POTA,
Combatting Terrorism

of proceeds of Omnibus provision (Section 8). is seized or attached in the
terrorism belief that it constitutes
proceeds of terrorism and is
produced before the
Designated Authority, it shall,
on being satisfied that the said
property constitutes proceeds
of terrorism, order forfeiture
of such property, whether or
not the person from whose
possession it is seized or
attached, is prosecuted in a
Special Court for an offence
case of Designated
Authority the powers are
with the Special Court.
Appeal lies with the
jurisdictional High Court.
2002 except the powers are, in
this case with the Court. The
term ‘Court’ has been defined
to mean a criminal court having
jurisdiction under the Cr.PC to
try offences under this Act.
Accordingly, the appeal lies
with the jurisdictional High
Court.

Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)

under this Act. Clause 9

provides for a show cause has
to be issued in writing before
making any order forfeiting
proceeds of terrorism. If the
person establishes that he is a
bona fide transferee of such
proceeds without knowing
that they represent proceeds
of terrorism, order of
forfeiture cannot be made. In
case of perishable property the
Designated Authority may
direct to be sold and the
Comparison of Anti-Terrorism Legislations in India

provisions of Section 459 of

the CrPC shall generally apply.
In case of other properties it
may nominate any officer of
the Central or State
Government to perform the
function of the administrator
of such property. As per clause
10 appeal lies with the
139
140
Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)

jurisdictional High Court. In

case of modification or
annulment of the order of
forfeiture by the High Court,
the property has to be
returned or a price has to be
paid as if the property has been
sold to the Central
Government along with
Combatting Terrorism

reasonable interest. As per

clause 11 order of forfeiture
does not interfere with other
punishments. As per clause
12 the Designated Authority
has the power to consider
claims by third parties.
2. Certain transfers No specific provisions. No specific provisions. Provisions are there. Provisions are there.
to be null and void

3. Forfeiture of Section 8:(1) Where a person Clause 16 is same as Section 8 Generally same as the Draft Same as POTA, 2002
property of certain has been convicted to any (1) and (2) of TADA Act. Bill.
persons offence punishable under this Further, Clause 17 is same as
Act or any rule made Section 8(4) of TADA Act.

Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)

thereunder, the Designated

Court may, in addition to
awarding any punishment, by
order in writing, declare that
any property, movable or
immovable or both,
belonging to the accused and
specified in the order, shall
stand forfeited to the
Government free from all
encumbrances.
(2) Where any person is
accused of any offence under
Comparison of Anti-Terrorism Legislations in India

this Act or any rule made

thereunder, it shall be open to
the Designated Court trying
him to pass an order that all
or any properties, movable or
immovable or both belonging
to him, shall, during the period
of such trial, be attached, and
where such trial ends in
141
140
Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)

jurisdictional High Court. In

case of modification or
annulment of the order of
forfeiture by the High Court,
the property has to be
returned or a price has to be
paid as if the property has been
sold to the Central
Government along with
Combatting Terrorism

reasonable interest. As per

clause 11 order of forfeiture
does not interfere with other
punishments. As per clause
12 the Designated Authority
has the power to consider
claims by third parties.
2. Certain transfers No specific provisions. No specific provisions. Provisions are there. Provisions are there.
to be null and void

3. Forfeiture of Section 8:(1) Where a person Clause 16 is same as Section 8 Generally same as the Draft Same as POTA, 2002
property of certain has been convicted to any (1) and (2) of TADA Act. Bill.
persons offence punishable under this Further, Clause 17 is same as
Act or any rule made Section 8(4) of TADA Act.

Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)

thereunder, the Designated

Court may, in addition to
awarding any punishment, by
order in writing, declare that
any property, movable or
immovable or both,
belonging to the accused and
specified in the order, shall
stand forfeited to the
Government free from all
encumbrances.
(2) Where any person is
accused of any offence under
Comparison of Anti-Terrorism Legislations in India

this Act or any rule made

thereunder, it shall be open to
the Designated Court trying
him to pass an order that all
or any properties, movable or
immovable or both belonging
to him, shall, during the period
of such trial, be attached, and
where such trial ends in
141
142
Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)

conviction, the properties so

attached shall stand forfeited
to Government free from all
encumbrances.
(3) (a) If upon a report in writ-
ing made by a police officer
or an officer referred to in sub-
section (1) of Section 7, any
Designated Court has reason
to believe that any person,
Combatting Terrorism

who has committed an of-

fence punishable under this
Act or any rule made there-
under, has absconded or is con-
cealing himself so that he may
not be apprehended, such
court may, notwithstanding
anything contained in Section
82 of the Code, publish a writ-
ten proclamation requiring
him to appear at a specified
place and at a specified time
not less than fifteen days but

Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)

not more than thirty days

from the date of publication
of such proclamation.
(b) The Designated Court is-
suing a proclamation under
Clause (a) may, at any time,
order the attachment of any
property, movable or immov-
able or both, belonging to the
proclaimed person, and there-
upon the provisions of Sec-
tions 83 to 85 of the Code shall
apply to such attachment as if
Comparison of Anti-Terrorism Legislations in India

such attachment were made

under that Code.
(c) If, within six months from
the date of the attachment,
any person, whose property is,
or has been, at the disposal of
the Government under sub-
section(2) of Section 85 of the
code, appears voluntarily or is
143
142
Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)

conviction, the properties so

attached shall stand forfeited
to Government free from all
encumbrances.
(3) (a) If upon a report in writ-
ing made by a police officer
or an officer referred to in sub-
section (1) of Section 7, any
Designated Court has reason
to believe that any person,
Combatting Terrorism

who has committed an of-

fence punishable under this
Act or any rule made there-
under, has absconded or is con-
cealing himself so that he may
not be apprehended, such
court may, notwithstanding
anything contained in Section
82 of the Code, publish a writ-
ten proclamation requiring
him to appear at a specified
place and at a specified time
not less than fifteen days but

Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)

not more than thirty days

from the date of publication
of such proclamation.
(b) The Designated Court is-
suing a proclamation under
Clause (a) may, at any time,
order the attachment of any
property, movable or immov-
able or both, belonging to the
proclaimed person, and there-
upon the provisions of Sec-
tions 83 to 85 of the Code shall
apply to such attachment as if
Comparison of Anti-Terrorism Legislations in India

such attachment were made

under that Code.
(c) If, within six months from
the date of the attachment,
any person, whose property is,
or has been, at the disposal of
the Government under sub-
section(2) of Section 85 of the
code, appears voluntarily or is
143
144
Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)

apprehended and brought be-

fore the Designated Court by
whose order the property was
attached, or the Court to
which such Court is subordi-
nate, and proves to the satis-
faction of such Court that he
did not abscond or conceal
himself for the purpose of
Combatting Terrorism

avoiding apprehension and

that he had not received such
notice of the proclamation as
to enable him to attend
within the time specified
therein, such property or, if
the same has been sold, the
net proceeds of the sale and
the residue of the property,
shall, after satisfying there-
from all costs incurred in con-
sequence of the attachment,
be delivered to him.

Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)

(4) Where any shares in a

company stand forfeited to
the Government under this
sub-section, then, the com-
pany shall, notwithstanding
anything contained in the
Companies Act, 1956, or the
articles of association the
company, forthwith register
the Government as the trans-
feree of such shares.
E. DESIGNATED AUTHORITY/DESIGNATED COURT/SPECIAL COURT
1. Powers of There is no Designated As per clause 13, the Designated Authority has Same as POTA, 2002.
Comparison of Anti-Terrorism Legislations in India

Designated Authority. Designated Authority has the
Authority powers of a Civil Court for
making a full and fair enquiry
into matters placed before it.
Designated Authority has not
been defined.
145
the powers of a Civil Court.
Designated Authority has
been defined to mean such
officer of the Central Gov-
ernment not below the rank
of Joint Secretary or such
officer of the State Govern-
ment not below the rank of
144
Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)

apprehended and brought be-

fore the Designated Court by
whose order the property was
attached, or the Court to
which such Court is subordi-
nate, and proves to the satis-
faction of such Court that he
did not abscond or conceal
himself for the purpose of
Combatting Terrorism

avoiding apprehension and

that he had not received such
notice of the proclamation as
to enable him to attend
within the time specified
therein, such property or, if
the same has been sold, the
net proceeds of the sale and
the residue of the property,
shall, after satisfying there-
from all costs incurred in con-
sequence of the attachment,
be delivered to him.

Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)

(4) Where any shares in a

company stand forfeited to
the Government under this
sub-section, then, the com-
pany shall, notwithstanding
anything contained in the
Companies Act, 1956, or the
articles of association the
company, forthwith register
the Government as the trans-
feree of such shares.
E. DESIGNATED AUTHORITY/DESIGNATED COURT/SPECIAL COURT
1. Powers of There is no Designated As per clause 13, the Designated Authority has Same as POTA, 2002.
Comparison of Anti-Terrorism Legislations in India

Designated Authority. Designated Authority has the
Authority powers of a Civil Court for
making a full and fair enquiry
into matters placed before it.
Designated Authority has not
been defined.
145
the powers of a Civil Court.
Designated Authority has
been defined to mean such
officer of the Central Gov-
ernment not below the rank
of Joint Secretary or such
officer of the State Govern-
ment not below the rank of
146
Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)

Secretary as specified by the

respective Governments by
a notification.

2. Designated Provisions for constitution of
Courts/Special one or more Designated
Courts. Courts by the Central Gov-
ernment or State Government
by way of notification for
such area or areas or for such
Instead of Designated Courts, Same as Draft Bill. No provision for Special
Special Courts have been Courts.
provided for. Provisions
similar to TADA Act. Clause
18(9) further mentions that a
Designated Court constituted
Combatting Terrorism

case or clause or group of cases under Section 9 of the TADA

as specified therein. Act, 1987 shall be deemed to
be a Special Court.

3. Procedure and Section 14: (1) A Designated
powers of Court may take cognizance of
Designated any offence, without the
Courts/Special accused being committed to
Courts. it for trial, upon receiving a
complaint of facts which
constitute such offence or
upon a police report of such
facts.(2) Where an offence
Similar provisions have been Similar provisions as in Law No such provision.
provided for (Clause 24) ex- Commission Draft Bill.
cept that the Special Court is
not empowered to take cog-
nizance of any offence with-
out the previous sanction of
the Central or State Govern-
ment, as the case may be.

Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)

triable by a Designated Court

is punishable with
imprisonment for a term not
exceeding three years or with
fine or with both, the
Designated Court may,
notwithstanding anything
contained in sub-section (1) of
Section 260 or Section 262 of
the Code, try the offence in a
summary way in accordance
with the procedure prescribed
in the Code and the provisions
of Section 263 to 265 of the
Comparison of Anti-Terrorism Legislations in India

Code, shall, so far as may be,

apply to such trial:Provided
that when, in the course of a
summary trial under this sub-
section, it appears to the
Designated Court that the
nature of the case is such that
it is undesirable to try it in a
summary way, the
147
146
Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)

Secretary as specified by the

respective Governments by
a notification.

2. Designated Provisions for constitution of
Courts/Special one or more Designated
Courts. Courts by the Central Gov-
ernment or State Government
by way of notification for
such area or areas or for such
Instead of Designated Courts, Same as Draft Bill. No provision for Special
Special Courts have been Courts.
provided for. Provisions
similar to TADA Act. Clause
18(9) further mentions that a
Designated Court constituted
Combatting Terrorism

case or clause or group of cases under Section 9 of the TADA

as specified therein. Act, 1987 shall be deemed to
be a Special Court.

3. Procedure and Section 14: (1) A Designated
powers of Court may take cognizance of
Designated any offence, without the
Courts/Special accused being committed to
Courts. it for trial, upon receiving a
complaint of facts which
constitute such offence or
upon a police report of such
facts.(2) Where an offence
Similar provisions have been Similar provisions as in Law No such provision.
provided for (Clause 24) ex- Commission Draft Bill.
cept that the Special Court is
not empowered to take cog-
nizance of any offence with-
out the previous sanction of
the Central or State Govern-
ment, as the case may be.

Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)

triable by a Designated Court

is punishable with
imprisonment for a term not
exceeding three years or with
fine or with both, the
Designated Court may,
notwithstanding anything
contained in sub-section (1) of
Section 260 or Section 262 of
the Code, try the offence in a
summary way in accordance
with the procedure prescribed
in the Code and the provisions
of Section 263 to 265 of the
Comparison of Anti-Terrorism Legislations in India

Code, shall, so far as may be,

apply to such trial:Provided
that when, in the course of a
summary trial under this sub-
section, it appears to the
Designated Court that the
nature of the case is such that
it is undesirable to try it in a
summary way, the
147
148
Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)

Designated Court shall recall

any witnesses who may have
been examined and proceed to
re-hear the case in the manner
provided by the provisions of
the Code for the trial of such
offence and the said provisions
shall apply to and in relation
to a Designated Court as they
Combatting Terrorism

apply to and in relation to a

Magistrate:Provided further
that in the case of any
conviction in a summary trial
under this section, it shall be
lawful for a Designated Court
to pass a sentence of
imprisonment for a term not
exceeding two years. (3)
Subject to the other provisions
of this Act, a Designated
Court shall, for the purpose
of trial of any offence, have
all the powers of a Court of

Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)

Session and shall try such

offence as if it were a Court of
Session so far as may be in
accordance with the procedure
prescribed in the Code for the
trial before a Court of
Session.(4) Subject to the
other provisions of this Act,
every case transferred to a
Designated Court under sub-
section (2) of Section 11 shall
be dealt with as if such case
had been transferred under
Section 406 of the Code to
Comparison of Anti-Terrorism Legislations in India

such Designated Court. (5)

Nothwithstanding anything
contained in the Code, a
Designated Court may, if it
thinks fit and for reasons to be
recorded by it, proceed with
the trial in the absence of the
accused or his pleader and
record the evidence of any
149
148
Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)

Designated Court shall recall

any witnesses who may have
been examined and proceed to
re-hear the case in the manner
provided by the provisions of
the Code for the trial of such
offence and the said provisions
shall apply to and in relation
to a Designated Court as they
Combatting Terrorism

apply to and in relation to a

Magistrate:Provided further
that in the case of any
conviction in a summary trial
under this section, it shall be
lawful for a Designated Court
to pass a sentence of
imprisonment for a term not
exceeding two years. (3)
Subject to the other provisions
of this Act, a Designated
Court shall, for the purpose
of trial of any offence, have
all the powers of a Court of

Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)

Session and shall try such

offence as if it were a Court of
Session so far as may be in
accordance with the procedure
prescribed in the Code for the
trial before a Court of
Session.(4) Subject to the
other provisions of this Act,
every case transferred to a
Designated Court under sub-
section (2) of Section 11 shall
be dealt with as if such case
had been transferred under
Section 406 of the Code to
Comparison of Anti-Terrorism Legislations in India

such Designated Court. (5)

Nothwithstanding anything
contained in the Code, a
Designated Court may, if it
thinks fit and for reasons to be
recorded by it, proceed with
the trial in the absence of the
accused or his pleader and
record the evidence of any
149
150
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive
Activities (Prevention) Act,
1987
witness, subject to the right
of the accused to recall the
witness for cross-examination.
4. Trial by Special Provisions exist (Section 17).
Courts to have
precedence
F. COGNIZANCE OF ANY OFFENCE/PRESUMPTION AS TO AN OFFENCE
1. Cognizance of Section 20 A (1)
offence Notwithstanding, anything
contained in the Code, no
information about the
commission of an offence
under this Act shall be
recorded by the police without
the prior approval of the
District Superintendent of
Police.
(2) No court shall take
cognizance of any offence
under this Act without the
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive
Activities (Prevention) Act,
1987
previous sanction of the
Inspector-General of Police, or
as the case may be, the
Commissioner of Police.
151
The Prevention of Terrorism
Bill, 2000 (Draft Bill as
recommended by the Law
Commission of India)
Provisions exist (Clasue 26).
Clause 31: (1) The police
officer recording information
in respect of an offence under
this Act shall promptly
forward copies of all the
material including
information given to the police
under section 154 of the Code
and its accompaniments to
the Director General of Police
and the Review Committee.
(2) It shall be open to the
Director General of Police or
The Prevention of Terrorism
Bill, 2000 (Draft Bill as
recommended by the Law
Commission of India)
the Review Committee to call
for such further information,
as they may deem necessary,
from the police or any other
person before approving or
disapproving the action taken
by the subordinate authorities.
(3) If the Director General of
Police does not approve the
recording of the aforesaid
information within ten days,
or the Review Committtee
does not approve the same
within thirty days, the
recording of the said
information shall become null
and void with effect from the
tenth, or as the case may be,
the thirtieth day and all
proceedings in that behalf shall
stand withdrawn and if the
accused is in custody, he shall
The Prevention of
Terrorism Act, 2002
Provisions exist (Section 31).
Section 50: No court shall
take cognizance of any
offence under this Act
without the previous
sanction of the Central
Government or, as the case
may be, the State
Government.
The Prevention of
Terrorism Act, 2002
Annexure-IV(1) Contd.
The Unlawful Activities
(Prevention) Amendment
Act, 2004
No such provision.
Combatting Terrorism
Section 45: No court shall take
cognizance of any offence-
(i) under Chapter III without
the previous sanction of the
Central Government or any
officer authorised by the
Central Government in this
behalf;
(ii) under Chapters IV and VI
without the previous sanction
of the Central Government or,
as the case may be, the State
Government, and where such
Annexure-IV(1) Contd.
The Unlawful Activities
(Prevention) Amendment
Act, 2004
offence is committed against
the Government of a foreign
country without the previous
sanction of the Central
Government.
Comparison of Anti-Terrorism Legislations in India
150
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive
Activities (Prevention) Act,
1987
witness, subject to the right
of the accused to recall the
witness for cross-examination.
4. Trial by Special Provisions exist (Section 17).
Courts to have
precedence
F. COGNIZANCE OF ANY OFFENCE/PRESUMPTION AS TO AN OFFENCE
1. Cognizance of Section 20 A (1)
offence Notwithstanding, anything
contained in the Code, no
information about the
commission of an offence
under this Act shall be
recorded by the police without
the prior approval of the
District Superintendent of
Police.
(2) No court shall take
cognizance of any offence
under this Act without the
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive
Activities (Prevention) Act,
1987
previous sanction of the
Inspector-General of Police, or
as the case may be, the
Commissioner of Police.
151
The Prevention of Terrorism
Bill, 2000 (Draft Bill as
recommended by the Law
Commission of India)
Provisions exist (Clasue 26).
Clause 31: (1) The police
officer recording information
in respect of an offence under
this Act shall promptly
forward copies of all the
material including
information given to the police
under section 154 of the Code
and its accompaniments to
the Director General of Police
and the Review Committee.
(2) It shall be open to the
Director General of Police or
The Prevention of Terrorism
Bill, 2000 (Draft Bill as
recommended by the Law
Commission of India)
the Review Committee to call
for such further information,
as they may deem necessary,
from the police or any other
person before approving or
disapproving the action taken
by the subordinate authorities.
(3) If the Director General of
Police does not approve the
recording of the aforesaid
information within ten days,
or the Review Committtee
does not approve the same
within thirty days, the
recording of the said
information shall become null
and void with effect from the
tenth, or as the case may be,
the thirtieth day and all
proceedings in that behalf shall
stand withdrawn and if the
accused is in custody, he shall
The Prevention of
Terrorism Act, 2002
Provisions exist (Section 31).
Section 50: No court shall
take cognizance of any
offence under this Act
without the previous
sanction of the Central
Government or, as the case
may be, the State
Government.
The Prevention of
Terrorism Act, 2002
Annexure-IV(1) Contd.
The Unlawful Activities
(Prevention) Amendment
Act, 2004
No such provision.
Combatting Terrorism
Section 45: No court shall take
cognizance of any offence-
(i) under Chapter III without
the previous sanction of the
Central Government or any
officer authorised by the
Central Government in this
behalf;
(ii) under Chapters IV and VI
without the previous sanction
of the Central Government or,
as the case may be, the State
Government, and where such
Annexure-IV(1) Contd.
The Unlawful Activities
(Prevention) Amendment
Act, 2004
offence is committed against
the Government of a foreign
country without the previous
sanction of the Central
Government.
Comparison of Anti-Terrorism Legislations in India
152
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive
Activities (Prevention) Act,
1987
2. Presumption as to Section 21: (1) In a
an offence prosecution for an offence
under sub-section (1) of
Section 3, if it is proved –
(a) that the arms or explosives
or any other substances
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive
Activities (Prevention) Act,
1987
specified in Section 3 were
recovered from the possession
of the accused and there is
reason to believe that such
arms or explosives or other
substances of similar nature,
were used in the commission
of such offence; or
(b) that by the evidence of an
expert the fingerprints of the
accused were found at the site
of the offence or on anything
including arms and vehicles
used in connection with the
commission of such offence.
(2) In a prosecution for an
offence under sub-section 3 of
Section 3, if it is proved that
the accused rendered any
financial assistance to a person
accused of, or reasonably
suspected of, an offence under
that section, the Designated
153
The Prevention of Terrorism
Bill, 2000 (Draft Bill as
recommended by the Law
Commission of India)
be released forthwith unless
required in connection with
some other offence.
(4) Any action taken or any
order passed under this section
shall be in addition to and
independent of any action
taken by the Review
Committee under section 39.
(5) No court shall take
cognizance of any offence
under this Act without the
previous sanction of the State
Government, or as the case
may be, the Central
Government.
Clause 34: (1) In a prosecution
for an offence under sub-
section (1) of section 3, if it is
proved-
(a) that the arms or explosives
or any other substances
The Prevention of Terrorism
Bill, 2000 (Draft Bill as
recommended by the Law
Commission of India)
specified in section 3 were
recovered from the possession
of the accused and there is
reason to believe that such
arms or explosives or other
substances of a similar nature,
were used in the commission
of such offence; or
(b) that by the evidence of an
expert the finger-prints of the
accused were found at the site
of the offence or on anything
including arms and vehicles
used in connection with the
commission of such offence,
the Special Court shall draw
the adverse inference against
the accused.
(2) In a prosecution for an
offence under sub-section (3)
of section 3, if it is proved that
the accused rendered any
financial assistance to a
Annexure-IV(1) Contd.
The Prevention of The Unlawful Activities
Terrorism Act, 2002 (Prevention) Amendment
Act, 2004
Combatting Terrorism
Section 53:(1) In a No separate provision.
prosecution for an offence
under sub-section (1) of
section 3, if it is proved—
(a) that the arms or
explosives or any other
Annexure-IV(1) Contd.
The Prevention of The Unlawful Activities
Terrorism Act, 2002 (Prevention) Amendment
Act, 2004
substances specified in
section 4 were recovered
from the possession of the
accused and there is reason
to believe that such arms or
explosives or other
substances of a similar
nature, were used in the
commission of such offence;
or
(b) that the finger-prints of
the accused were found at
the site of the offence or on
anything including arms and
Comparison of Anti-Terrorism Legislations in India
vehicles used in connection
with the commission of such
offence, the Special Court
shall draw adverse inference
against the accused.
(2) In a prosecution for an
offence under sub-section
(3) of section 3, if it is proved
that the accused rendered
152
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive
Activities (Prevention) Act,
1987
2. Presumption as to Section 21: (1) In a
an offence prosecution for an offence
under sub-section (1) of
Section 3, if it is proved –
(a) that the arms or explosives
or any other substances
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive
Activities (Prevention) Act,
1987
specified in Section 3 were
recovered from the possession
of the accused and there is
reason to believe that such
arms or explosives or other
substances of similar nature,
were used in the commission
of such offence; or
(b) that by the evidence of an
expert the fingerprints of the
accused were found at the site
of the offence or on anything
including arms and vehicles
used in connection with the
commission of such offence.
(2) In a prosecution for an
offence under sub-section 3 of
Section 3, if it is proved that
the accused rendered any
financial assistance to a person
accused of, or reasonably
suspected of, an offence under
that section, the Designated
153
The Prevention of Terrorism
Bill, 2000 (Draft Bill as
recommended by the Law
Commission of India)
be released forthwith unless
required in connection with
some other offence.
(4) Any action taken or any
order passed under this section
shall be in addition to and
independent of any action
taken by the Review
Committee under section 39.
(5) No court shall take
cognizance of any offence
under this Act without the
previous sanction of the State
Government, or as the case
may be, the Central
Government.
Clause 34: (1) In a prosecution
for an offence under sub-
section (1) of section 3, if it is
proved-
(a) that the arms or explosives
or any other substances
The Prevention of Terrorism
Bill, 2000 (Draft Bill as
recommended by the Law
Commission of India)
specified in section 3 were
recovered from the possession
of the accused and there is
reason to believe that such
arms or explosives or other
substances of a similar nature,
were used in the commission
of such offence; or
(b) that by the evidence of an
expert the finger-prints of the
accused were found at the site
of the offence or on anything
including arms and vehicles
used in connection with the
commission of such offence,
the Special Court shall draw
the adverse inference against
the accused.
(2) In a prosecution for an
offence under sub-section (3)
of section 3, if it is proved that
the accused rendered any
financial assistance to a
Annexure-IV(1) Contd.
The Prevention of The Unlawful Activities
Terrorism Act, 2002 (Prevention) Amendment
Act, 2004
Combatting Terrorism
Section 53:(1) In a No separate provision.
prosecution for an offence
under sub-section (1) of
section 3, if it is proved—
(a) that the arms or
explosives or any other
Annexure-IV(1) Contd.
The Prevention of The Unlawful Activities
Terrorism Act, 2002 (Prevention) Amendment
Act, 2004
substances specified in
section 4 were recovered
from the possession of the
accused and there is reason
to believe that such arms or
explosives or other
substances of a similar
nature, were used in the
commission of such offence;
or
(b) that the finger-prints of
the accused were found at
the site of the offence or on
anything including arms and
Comparison of Anti-Terrorism Legislations in India
vehicles used in connection
with the commission of such
offence, the Special Court
shall draw adverse inference
against the accused.
(2) In a prosecution for an
offence under sub-section
(3) of section 3, if it is proved
that the accused rendered
154
Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)

Court shall presume, unless
the contrary is proved, that
such person has committed
the offence under that sub-
section.
person, having knowledge
that such person is accused of,
or reasonably suspected of, an
offence under that section, the
Special Court shall draw the
adverse inference against the
accused.
any financial assistance to a
person, having knowledge
that such person is accused
of, or reasonably suspected
of, an offence under that
section, the Special Court
shall draw adverse inference
against the accused.
(In case of finger prints,
Section 53 (1) (b), POTA,
Combatting Terrorism

2002 does not mention the

phrase ‘by the evidence of an
expert’)
G. CONFESSIONS BEFORE POLICE OFFICERS/PROTECTION OF WITNESSES

1. Certain confess- Section 15: (1) Nothwith-
ions made to standing anything in the Code
police officers to or in the Indian Evidence Act,
be taken into 1872, but subject to the
consideration. provisions of this section, a
confession made by a person
before a police officer not
lower in rank than a
Clause 27: (1) Notwith-
standing anything in the Code
or in the Indian Evidence Act,
1872, but subject to the
provisions of this section, a
confession made by a person
before a police officer not
lower in rank than a
Similar provisions as in Law
Commission Draft Bill exist
in POTA, 2002 (Section
32).
No such provision.However,
there exist separate provisions
for admissibility of evidence
collected through the
interception of commu-
nications (Section 46).

Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)

Superintendent of Police and Superintendent of Police and

recorded by such police
officer either in writing or on
any mechanical device like
cassettes, tapes or sound tracks
from out of which sounds or
images can be reproduced,
shall be admissible in the trial
of such person [or co-accused,
abettor or conspirator] for an
offence under this Act or rules
made thereunder: [Provided
that co-accused, abettor or
conspirator is charged and
tried in the same case together
recorded by such police
officer either in writing or any
mechanical device like
cassettes, tapes or sound tracks
from out of which sound or
images can be reproduced,
shall be admissible in the trial
of such person for an offence
under this Act or rules made
thereunder. (2) A police
officer shall, before recording
any confession made by a
person under sub-section (1)
explain to such person in
writing that he is not bound
Comparison of Anti-Terrorism Legislations in India

with the accused].(2) The to make a confession and that

police officer shall, before
recording any confession
under sub-section (1), explain
to the person making it that
he is not bound to make a
confession and that, if he does
so, it may be used as evidence
against him and such police
155
if he does so, it may be used
against him. Provided that
where such person prefers to
remain silent the police officer
shall not compel or induce
him to make any confession.
(3) The confession shall be
recorded in an atmosphere free
from threat or inducement
154
Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)

Court shall presume, unless
the contrary is proved, that
such person has committed
the offence under that sub-
section.
person, having knowledge
that such person is accused of,
or reasonably suspected of, an
offence under that section, the
Special Court shall draw the
adverse inference against the
accused.
any financial assistance to a
person, having knowledge
that such person is accused
of, or reasonably suspected
of, an offence under that
section, the Special Court
shall draw adverse inference
against the accused.
(In case of finger prints,
Section 53 (1) (b), POTA,
Combatting Terrorism

2002 does not mention the

phrase ‘by the evidence of an
expert’)
G. CONFESSIONS BEFORE POLICE OFFICERS/PROTECTION OF WITNESSES

1. Certain confess- Section 15: (1) Nothwith-
ions made to standing anything in the Code
police officers to or in the Indian Evidence Act,
be taken into 1872, but subject to the
consideration. provisions of this section, a
confession made by a person
before a police officer not
lower in rank than a
Clause 27: (1) Notwith-
standing anything in the Code
or in the Indian Evidence Act,
1872, but subject to the
provisions of this section, a
confession made by a person
before a police officer not
lower in rank than a
Similar provisions as in Law
Commission Draft Bill exist
in POTA, 2002 (Section
32).
No such provision.However,
there exist separate provisions
for admissibility of evidence
collected through the
interception of commu-
nications (Section 46).

Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)

Superintendent of Police and Superintendent of Police and

recorded by such police
officer either in writing or on
any mechanical device like
cassettes, tapes or sound tracks
from out of which sounds or
images can be reproduced,
shall be admissible in the trial
of such person [or co-accused,
abettor or conspirator] for an
offence under this Act or rules
made thereunder: [Provided
that co-accused, abettor or
conspirator is charged and
tried in the same case together
recorded by such police
officer either in writing or any
mechanical device like
cassettes, tapes or sound tracks
from out of which sound or
images can be reproduced,
shall be admissible in the trial
of such person for an offence
under this Act or rules made
thereunder. (2) A police
officer shall, before recording
any confession made by a
person under sub-section (1)
explain to such person in
writing that he is not bound
Comparison of Anti-Terrorism Legislations in India

with the accused].(2) The to make a confession and that

police officer shall, before
recording any confession
under sub-section (1), explain
to the person making it that
he is not bound to make a
confession and that, if he does
so, it may be used as evidence
against him and such police
155
if he does so, it may be used
against him. Provided that
where such person prefers to
remain silent the police officer
shall not compel or induce
him to make any confession.
(3) The confession shall be
recorded in an atmosphere free
from threat or inducement
156
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive
Activities (Prevention) Act,
1987
officer shall not record any
such confession unless upon
questioning the person
making it, he has reason to
believe that it is being made
voluntarily.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive
Activities (Prevention) Act,
1987
1. Protection of Section 16: (1) Nothwith-
Witnesses. standing anything contained
in the Code, the proceedings
under this Act may be held in
camera if the Designated
Court so desires.(2) A
Designated Court may, on an
application made by a witness
in any proceedings before it
or by the Public Prosecutor in
relation to such witness or on
its own motion, take such
measures as it deems fit for
keeping the identity and
address of any witness
secret.(3) In particular, and
without prejudice to the
generality of the provisions of
sub-section (2), the measures
which a Designated Court
may take under that sub-
section may include, a. the
holding of the proceedings at
157
Annexure-IV(1) Contd.
The Prevention of Terrorism The Prevention of The Unlawful Activities
Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
recommended by the Law Act, 2004
Commission of India)
and shall be in the same
language in which the person
makes it. (4) The person from
whom a confession has been
recorded under sub-section
(1), shall be produced before
the Court of a Chief
Metropolitan Magistrate or
the court of a Chief Judicial
Magistrate along with the
original statement of
Combatting Terrorism
confession, written or
recorded on mechanical or
electronic device within 48
hours. (5) The Chief
Metropolitan Magistrate or
the Chief Judicial Magistrate,
shall, scrupulously record the
statement, if any, made by the
person so produced and get
his signature and if there is any
complaint of torture, such
person shall be directed to be
produced for medical
examination before a Medical
Annexure-IV(1) Contd.
The Prevention of Terrorism The Prevention of The Unlawful Activities
Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
recommended by the Law Act, 2004
Commission of India)
Officer not lower in rank than Same as Law Commission Provisions similar to POTA,
an Assistant Civil Surgeon and Draft Bill (Section 30). 2002 except that in place of
thereafter, he shall be sent to mentioning a Special Court
judicial custody. reference is made to ‘a
Clause 25: (1) Notwith- court’.
standing anything contained in
the Code, the proceedings
under this Act may, for reasons
to be recorded in writing, be
held in camera if the Special
Court so desires.(2) A Special
Court, if on an application
made by a witness in any
proceeding before it or by the
Public Prosecutor in relation
Comparison of Anti-Terrorism Legislations in India
to such witness or on its own
motion, is satisfied that the life
of such witness is in danger, it
may, for reasons to be recorded
in writing, take such measures
as it deems fit for keeping the
identity and address of such
witness secret.(3) In particular,
and without prejudice to the
156
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive
Activities (Prevention) Act,
1987
officer shall not record any
such confession unless upon
questioning the person
making it, he has reason to
believe that it is being made
voluntarily.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive
Activities (Prevention) Act,
1987
1. Protection of Section 16: (1) Nothwith-
Witnesses. standing anything contained
in the Code, the proceedings
under this Act may be held in
camera if the Designated
Court so desires.(2) A
Designated Court may, on an
application made by a witness
in any proceedings before it
or by the Public Prosecutor in
relation to such witness or on
its own motion, take such
measures as it deems fit for
keeping the identity and
address of any witness
secret.(3) In particular, and
without prejudice to the
generality of the provisions of
sub-section (2), the measures
which a Designated Court
may take under that sub-
section may include, a. the
holding of the proceedings at
157
Annexure-IV(1) Contd.
The Prevention of Terrorism The Prevention of The Unlawful Activities
Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
recommended by the Law Act, 2004
Commission of India)
and shall be in the same
language in which the person
makes it. (4) The person from
whom a confession has been
recorded under sub-section
(1), shall be produced before
the Court of a Chief
Metropolitan Magistrate or
the court of a Chief Judicial
Magistrate along with the
original statement of
Combatting Terrorism
confession, written or
recorded on mechanical or
electronic device within 48
hours. (5) The Chief
Metropolitan Magistrate or
the Chief Judicial Magistrate,
shall, scrupulously record the
statement, if any, made by the
person so produced and get
his signature and if there is any
complaint of torture, such
person shall be directed to be
produced for medical
examination before a Medical
Annexure-IV(1) Contd.
The Prevention of Terrorism The Prevention of The Unlawful Activities
Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
recommended by the Law Act, 2004
Commission of India)
Officer not lower in rank than Same as Law Commission Provisions similar to POTA,
an Assistant Civil Surgeon and Draft Bill (Section 30). 2002 except that in place of
thereafter, he shall be sent to mentioning a Special Court
judicial custody. reference is made to ‘a
Clause 25: (1) Notwith- court’.
standing anything contained in
the Code, the proceedings
under this Act may, for reasons
to be recorded in writing, be
held in camera if the Special
Court so desires.(2) A Special
Court, if on an application
made by a witness in any
proceeding before it or by the
Public Prosecutor in relation
Comparison of Anti-Terrorism Legislations in India
to such witness or on its own
motion, is satisfied that the life
of such witness is in danger, it
may, for reasons to be recorded
in writing, take such measures
as it deems fit for keeping the
identity and address of such
witness secret.(3) In particular,
and without prejudice to the
158
Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)

a place to be decided by the generality of the provisions of

Designated Court; b. the
avoiding of the mention of the
names and addresses of the
witnesses in it orders or
judgments or in any records
of the case accessible to public;
c. the issuing of any directions
for securing that the identity
and addresses of the witnesses
sub-section (2), the measures
which a Special Court may
take under that sub-section
may include—(a) the holding
of the proceedings at a place
to be decided by the Special
Court; (b) the avoiding of the
mention of the names and
addresses of the witnesses in
its orders or judgments or in
Combatting Terrorism

are not disclosed. d. that it is any records of the case

in the public interest to order
that all or any of the
proceedings pending before
such a court shall not be
published in any manner. (4)
Any person who contravenes
any direction issued under sub-
section (3) shall be punishable
with imprisonment for a term
which may extend to one year
and with fine which may
extend to one thousand
rupees.
accessible to public; (c) the
issuing of any directions for
securing that the identity and
addresses of the witnesses are
not disclosed; (d) a decision
that it is in the public interest
to order that all or any of the
proceedings pending before
such a Court shall not be
published in any manner.
(4) Any person who
contravenes any decision or
direction issued under sub-

Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)
section (3) shall be punishable
with imprisonment for a term
which may extend to one
year and with fine which may
extend to one thousand
rupees.

H. GRANT OF BAIL/MODIFIED APPLICATION OF PROVISIONS OF CrPC/ARREST

1. Grant of Bail Section 20: (8) Notwith-
standing anything contained
in the Code, no person accused
of an offence punishable under
this Act or any rule made
thereunder shall, if in custody,
be released on bail or on his
Clause 30(6): Notwith-
standing anything contained
in the Code, no person accused
of an offence punishable under
this Act shall, if in custody, be
released on bail or on his own
bond unless the Public
Sections 49 (6) to 49 (9) : No such provision.
Provisions similar to Law
Commission Draft Bill,
except for Section 49(7).
49(7): Where the Public
Prosecutor opposes the
Comparison of Anti-Terrorism Legislations in India

application of the accused to

own bond unless, –
a. the Public Prosecutor has
been given an opportunity
to oppose the application
for such release, and
b. where the Public
Prosecutor opposes the
application, the Court is
159
Prosecutor has been given an
opportunity to oppose the
application for such release.
Clause 30(7): Where the
Public Prosecutor opposes the
application of the accused to
release on bail, no person
accused of an offence
release on bail, no person
accused of an offence
punishable under this Act or
any rule made thereunder
shall be released on bail until
the Court is satisfied that
there are grounds for
believing that he is not guilty
158
Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)

a place to be decided by the generality of the provisions of

Designated Court; b. the
avoiding of the mention of the
names and addresses of the
witnesses in it orders or
judgments or in any records
of the case accessible to public;
c. the issuing of any directions
for securing that the identity
and addresses of the witnesses
sub-section (2), the measures
which a Special Court may
take under that sub-section
may include—(a) the holding
of the proceedings at a place
to be decided by the Special
Court; (b) the avoiding of the
mention of the names and
addresses of the witnesses in
its orders or judgments or in
Combatting Terrorism

are not disclosed. d. that it is any records of the case

in the public interest to order
that all or any of the
proceedings pending before
such a court shall not be
published in any manner. (4)
Any person who contravenes
any direction issued under sub-
section (3) shall be punishable
with imprisonment for a term
which may extend to one year
and with fine which may
extend to one thousand
rupees.
accessible to public; (c) the
issuing of any directions for
securing that the identity and
addresses of the witnesses are
not disclosed; (d) a decision
that it is in the public interest
to order that all or any of the
proceedings pending before
such a Court shall not be
published in any manner.
(4) Any person who
contravenes any decision or
direction issued under sub-

Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)
section (3) shall be punishable
with imprisonment for a term
which may extend to one
year and with fine which may
extend to one thousand
rupees.

H. GRANT OF BAIL/MODIFIED APPLICATION OF PROVISIONS OF CrPC/ARREST

1. Grant of Bail Section 20: (8) Notwith-
standing anything contained
in the Code, no person accused
of an offence punishable under
this Act or any rule made
thereunder shall, if in custody,
be released on bail or on his
Clause 30(6): Notwith-
standing anything contained
in the Code, no person accused
of an offence punishable under
this Act shall, if in custody, be
released on bail or on his own
bond unless the Public
Sections 49 (6) to 49 (9) : No such provision.
Provisions similar to Law
Commission Draft Bill,
except for Section 49(7).
49(7): Where the Public
Prosecutor opposes the
Comparison of Anti-Terrorism Legislations in India

application of the accused to

own bond unless, –
a. the Public Prosecutor has
been given an opportunity
to oppose the application
for such release, and
b. where the Public
Prosecutor opposes the
application, the Court is
159
Prosecutor has been given an
opportunity to oppose the
application for such release.
Clause 30(7): Where the
Public Prosecutor opposes the
application of the accused to
release on bail, no person
accused of an offence
release on bail, no person
accused of an offence
punishable under this Act or
any rule made thereunder
shall be released on bail until
the Court is satisfied that
there are grounds for
believing that he is not guilty
160
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive
Activities (Prevention) Act,
1987
satisfied that there are
reasonable grounds for
believing that he is not
guilty of such offence and
that he is not likely to
commit any offence while
on bail.
(9) The limitations on
granting of bail specified in
sub-section (8) are in addition
to the limitations under the
Code or any other law for the
time being in force on granting
of bail.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive
Activities (Prevention) Act,
1987
2. Modified applica- Section 2(c), Section 21,
tion of certain Section 164, Section 268,
provisons of the Sections 366 to 371, Section
Cr.PC especially 392, and Section 438 of the
Section 167. CrPC have modified
application.
Further, Section 20(4) of the
Act provides that:
“Section 167 of the Code shall
apply in relation to a case
involving an offence
punishable under this Act or
any rule made thereunder
subject to the modifications
that,-
a. the reference in sub-section
(1) thereof to “Judicial
Magistrate” shall be construed
as a reference to Judicial
Magistrate or Executive
Magistrate or Special
Executive Magistrate;
b. the reference in sub-section
(2) thereof to “fifteen days,”
“ninety days” and “sixty days,”
wherever they occur, shall be
161
Annexure-IV(1) Contd.
The Prevention of Terrorism The Prevention of The Unlawful Activities
Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
recommended by the Law Act, 2004
Commission of India)
punishable under this Act or any of committing such
rule made thereunder shall be offence:Provided that after
released on bail until the court the expiry of a period of one
is satisfied that there are grounds year from the date of
for believing that he is not guilty detention of the accused for
of committing such offence. an offence under this Act, the
provisions of sub-section (6)
Clause 30(8): The limitations
of this section shall apply.
on granting of bail specified in
sub-sections (6) and (7) are in
addition to the limitations under
Combatting Terrorism
the Code or any other law for
the time being in force on
granting of bail.
Clause 30(9): Notwith-
standing anything contained
in sub-sections (6), (7) and (8),
no bail shall be granted to a
person accused of an offence
punishable under this Act, if
he is not an Indian citizen
except in very exceptional
circumstances and for reasons
to be recorded therefor.
Annexure-IV(1) Contd.
The Prevention of Terrorism The Prevention of The Unlawful Activities
Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
recommended by the Law Act, 2004
Commission of India)
Clause 30 provides that Provisions similar as to the No such provision.
Section 2( c), 268, 366, 367, Law Commission Draft Bill
371 and 438 shall have (Section 49).
modified application. Further
Clause 30(2) provides that
Section 167 of the Code shall
apply in relation to a case
involving an offence
punishable under this Act
subject to the modification
that, in sub-section (2), - (a)
the references to “fifteen
days”, “ninety days” and “sixty
days”, wherever they occur,
shall be construed as references
Comparison of Anti-Terrorism Legislations in India
to “thirty days”, “ninety days”
and “ninety days”,
respectively; and (b) after the
proviso, the following
provisos shall be inserted
namely:- “Provided further
that if it is not possible to
complete the investigation
within the said period of
160
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive
Activities (Prevention) Act,
1987
satisfied that there are
reasonable grounds for
believing that he is not
guilty of such offence and
that he is not likely to
commit any offence while
on bail.
(9) The limitations on
granting of bail specified in
sub-section (8) are in addition
to the limitations under the
Code or any other law for the
time being in force on granting
of bail.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive
Activities (Prevention) Act,
1987
2. Modified applica- Section 2(c), Section 21,
tion of certain Section 164, Section 268,
provisons of the Sections 366 to 371, Section
Cr.PC especially 392, and Section 438 of the
Section 167. CrPC have modified
application.
Further, Section 20(4) of the
Act provides that:
“Section 167 of the Code shall
apply in relation to a case
involving an offence
punishable under this Act or
any rule made thereunder
subject to the modifications
that,-
a. the reference in sub-section
(1) thereof to “Judicial
Magistrate” shall be construed
as a reference to Judicial
Magistrate or Executive
Magistrate or Special
Executive Magistrate;
b. the reference in sub-section
(2) thereof to “fifteen days,”
“ninety days” and “sixty days,”
wherever they occur, shall be
161
Annexure-IV(1) Contd.
The Prevention of Terrorism The Prevention of The Unlawful Activities
Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
recommended by the Law Act, 2004
Commission of India)
punishable under this Act or any of committing such
rule made thereunder shall be offence:Provided that after
released on bail until the court the expiry of a period of one
is satisfied that there are grounds year from the date of
for believing that he is not guilty detention of the accused for
of committing such offence. an offence under this Act, the
provisions of sub-section (6)
Clause 30(8): The limitations
of this section shall apply.
on granting of bail specified in
sub-sections (6) and (7) are in
addition to the limitations under
Combatting Terrorism
the Code or any other law for
the time being in force on
granting of bail.
Clause 30(9): Notwith-
standing anything contained
in sub-sections (6), (7) and (8),
no bail shall be granted to a
person accused of an offence
punishable under this Act, if
he is not an Indian citizen
except in very exceptional
circumstances and for reasons
to be recorded therefor.
Annexure-IV(1) Contd.
The Prevention of Terrorism The Prevention of The Unlawful Activities
Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
recommended by the Law Act, 2004
Commission of India)
Clause 30 provides that Provisions similar as to the No such provision.
Section 2( c), 268, 366, 367, Law Commission Draft Bill
371 and 438 shall have (Section 49).
modified application. Further
Clause 30(2) provides that
Section 167 of the Code shall
apply in relation to a case
involving an offence
punishable under this Act
subject to the modification
that, in sub-section (2), - (a)
the references to “fifteen
days”, “ninety days” and “sixty
days”, wherever they occur,
shall be construed as references
Comparison of Anti-Terrorism Legislations in India
to “thirty days”, “ninety days”
and “ninety days”,
respectively; and (b) after the
proviso, the following
provisos shall be inserted
namely:- “Provided further
that if it is not possible to
complete the investigation
within the said period of
162
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive
Activities (Prevention) Act,
1987
construed as references to
“sixty days” [one hundred and
eighty days] and 8[one
hundred and eighty days],
respectively; and
(bb)sub-section (2-A) thereof
shall be deemed to have been
omitted.
[(bbb) in sub-section (2), after
the proviso, the following
proviso shall be inserted,
Annexure-IV(1) Contd.
The Prevention of Terrorism The Prevention of The Unlawful Activities
Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
recommended by the Law Act, 2004
Commission of India)
ninety days, the Special Court
shall extend the said period
upto one hundred and eighty
days, on the report of the
Public Prosecutor indicating
the progress of investigation
and the specific reasons for the
detention of the accused
beyond the said period of
ninety days: Provided also
Combatting Terrorism

namely:- that if the police officer

“Provided further that, if it is
not possible to complete the
investigation within the said
period of one hundred and
eighty days, the Designated
Court shall extend the said
period up to one year, on the
report of the Public
Prosecutor indicating the
progress of the investigation
and the specific reasons for the
detention of the accused
beyond the said period of one
hundred and eighty days.”
making the investigation
under this Act, requests for
police custody from judicial
custody of any person, for the
purposes of investigation, he
shall file an affidavit stating
the reasons for doing so and
shall also explain the delay, if
any, for requesting such police
custody”.

Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)

3. Arrest Section 20(7): Nothing in
Section 438 of the Code shall
apply in relation to any case
involving the arrest of any
person on an accusation of
having committed an offence
punishable under this act or
any rule made thereunder.
Clause 30(5): Nothing in
Section 438 of the Code shall
apply in relation to any case
involving the arrest of any
person on an accusation of
having committed an offence
punishable under this act.
Clause 33: (1) Whenever any
person, who being a citizen of
India, is arrested, information
of his arrest shall be
immediately communicated
by the police officer to a
family member or to a relative
of such person by telegram,
Section 49(5): Nothing in No provision.
section 438 of the Code shall
apply in relation to any case
involving the arrest of any
person accused of having
committed an offence
punishable under this Act.
Section 52: (1) Where a
police officer arrests a person,
he shall prepare a custody
memo of the person arrested.
(2) The person arrested shall
be informed of his right to
consult a legal practitioner as
Comparison of Anti-Terrorism Legislations in India

phone or by any other means soon as he is brought to the

which shall be recorded by the
police officer under the
signature of the person
arrested.
(2) Where a police officer
arrests a person, he shall
prepare a custody memo of
the person arrested.
163
police station.
(3) Whenever any person is
arrested, information of his
arrest shall be immediately
communicated by the police
officer to a family member
or in his absence to a relative
162
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive
Activities (Prevention) Act,
1987
construed as references to
“sixty days” [one hundred and
eighty days] and 8[one
hundred and eighty days],
respectively; and
(bb)sub-section (2-A) thereof
shall be deemed to have been
omitted.
[(bbb) in sub-section (2), after
the proviso, the following
proviso shall be inserted,
Annexure-IV(1) Contd.
The Prevention of Terrorism The Prevention of The Unlawful Activities
Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
recommended by the Law Act, 2004
Commission of India)
ninety days, the Special Court
shall extend the said period
upto one hundred and eighty
days, on the report of the
Public Prosecutor indicating
the progress of investigation
and the specific reasons for the
detention of the accused
beyond the said period of
ninety days: Provided also
Combatting Terrorism

namely:- that if the police officer

“Provided further that, if it is
not possible to complete the
investigation within the said
period of one hundred and
eighty days, the Designated
Court shall extend the said
period up to one year, on the
report of the Public
Prosecutor indicating the
progress of the investigation
and the specific reasons for the
detention of the accused
beyond the said period of one
hundred and eighty days.”
making the investigation
under this Act, requests for
police custody from judicial
custody of any person, for the
purposes of investigation, he
shall file an affidavit stating
the reasons for doing so and
shall also explain the delay, if
any, for requesting such police
custody”.

Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)

3. Arrest Section 20(7): Nothing in
Section 438 of the Code shall
apply in relation to any case
involving the arrest of any
person on an accusation of
having committed an offence
punishable under this act or
any rule made thereunder.
Clause 30(5): Nothing in
Section 438 of the Code shall
apply in relation to any case
involving the arrest of any
person on an accusation of
having committed an offence
punishable under this act.
Clause 33: (1) Whenever any
person, who being a citizen of
India, is arrested, information
of his arrest shall be
immediately communicated
by the police officer to a
family member or to a relative
of such person by telegram,
Section 49(5): Nothing in No provision.
section 438 of the Code shall
apply in relation to any case
involving the arrest of any
person accused of having
committed an offence
punishable under this Act.
Section 52: (1) Where a
police officer arrests a person,
he shall prepare a custody
memo of the person arrested.
(2) The person arrested shall
be informed of his right to
consult a legal practitioner as
Comparison of Anti-Terrorism Legislations in India

phone or by any other means soon as he is brought to the

which shall be recorded by the
police officer under the
signature of the person
arrested.
(2) Where a police officer
arrests a person, he shall
prepare a custody memo of
the person arrested.
163
police station.
(3) Whenever any person is
arrested, information of his
arrest shall be immediately
communicated by the police
officer to a family member
or in his absence to a relative
164
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism
Activities (Prevention) Act, Bill, 2000 (Draft Bill as
1987 recommended by the Law
Commission of India)
(3) During the interrogation,
the legal practitioner of the
person arrested shall be
allowed to remain present and
the person arrested shall be
informed of his right as soon
as he is brought to the police
station.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism
Activities (Prevention) Act, Bill, 2000 (Draft Bill as
1987 recommended by the Law
Commission of India)
I. TERRORIST ORGANISATIONS
1. Terrorist No separate provision No separate provision
Organisation
165
Annexure-IV(1) Contd.
The Prevention of The Unlawful Activities
Terrorism Act, 2002 (Prevention) Amendment
Act, 2004
of such person by telegram,
telephone or by any other
means and this fact shall be
recorded by the police officer
under the signature of the
person arrested.
(4) The person arrested shall
be permitted to meet the
legal practitioner
representing him during the
Combatting Terrorism
course of interrogation of
the accused person:Provided
that nothing in this sub-
section shall entitle the legal
practitioner to remain
present throughout the
period of interrogation.
(Thus, while the person
arrested has to be informed
of his right to consult a legal
practitioner, the legal
practitioner is not entitled to
remain present throughout
Annexure-IV(1) Contd.
The Prevention of The Unlawful Activities
Terrorism Act, 2002 (Prevention) Amendment
Act, 2004
the period of interrogation
reversing the position in the
Law Commission Draft
Bill).
Specific provisions under Specific provisions under
Chapter III of the Act Chapter VI of the Act regarding
covering
(1) identification of a terrorist
(1) declaration of an organisation (2) denotification
organisation as a terrorist of a terrorist organisation (3)
organisation (2) offences setting up of review
relating to membership of committees for considering
a terrorist organisation (3) issues related to denotification
offences relating to support etc. (4) offences relating to
Comparison of Anti-Terrorism Legislations in India
given to a terrorist membership of a terrorist
organisation and (4) organisation (similar to POTA,
offences related to fund 2002) (5) offences related to
raising for a terrorist support given to a terrorist
organisation. organisation (similar to POTA,
2002) (6) offences related to
fund raising for a terrorist
organisation (similar to POTA,
2002)
164
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism
Activities (Prevention) Act, Bill, 2000 (Draft Bill as
1987 recommended by the Law
Commission of India)
(3) During the interrogation,
the legal practitioner of the
person arrested shall be
allowed to remain present and
the person arrested shall be
informed of his right as soon
as he is brought to the police
station.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism
Activities (Prevention) Act, Bill, 2000 (Draft Bill as
1987 recommended by the Law
Commission of India)
I. TERRORIST ORGANISATIONS
1. Terrorist No separate provision No separate provision
Organisation
165
Annexure-IV(1) Contd.
The Prevention of The Unlawful Activities
Terrorism Act, 2002 (Prevention) Amendment
Act, 2004
of such person by telegram,
telephone or by any other
means and this fact shall be
recorded by the police officer
under the signature of the
person arrested.
(4) The person arrested shall
be permitted to meet the
legal practitioner
representing him during the
Combatting Terrorism
course of interrogation of
the accused person:Provided
that nothing in this sub-
section shall entitle the legal
practitioner to remain
present throughout the
period of interrogation.
(Thus, while the person
arrested has to be informed
of his right to consult a legal
practitioner, the legal
practitioner is not entitled to
remain present throughout
Annexure-IV(1) Contd.
The Prevention of The Unlawful Activities
Terrorism Act, 2002 (Prevention) Amendment
Act, 2004
the period of interrogation
reversing the position in the
Law Commission Draft
Bill).
Specific provisions under Specific provisions under
Chapter III of the Act Chapter VI of the Act regarding
covering
(1) identification of a terrorist
(1) declaration of an organisation (2) denotification
organisation as a terrorist of a terrorist organisation (3)
organisation (2) offences setting up of review
relating to membership of committees for considering
a terrorist organisation (3) issues related to denotification
offences relating to support etc. (4) offences relating to
Comparison of Anti-Terrorism Legislations in India
given to a terrorist membership of a terrorist
organisation and (4) organisation (similar to POTA,
offences related to fund 2002) (5) offences related to
raising for a terrorist support given to a terrorist
organisation. organisation (similar to POTA,
2002) (6) offences related to
fund raising for a terrorist
organisation (similar to POTA,
2002)
166
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002
1987 recommended by the Law
Commission of India)
J. INTERCEPTION OF COMMUNICATIONS
1. Interception of No separate provision No separate provision Separate chapter 5
communication containing provisions
in certain cases regarding
(1) description of
communication meant for
interception
(2) appointment of
competent authority by the
Central or State
Government for this
purpose
(3) authorisation of such
interception
(4) review of order of
interception issued by the
competent authority by a
review committee
(5) duration of an order of
interception etc.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002
1987 recommended by the Law
Commission of India)
(6) description of authority
competent to carryout
interception
(7) interception of
communication in
emergency situations
(8) protection of
information collected
(9) admissibility of evidence
collected through
interception of
communications
(10) prohibition of
interception and disclosure
of certain communication
(11) annual report of
interceptions.
167
Annexure-IV(1) Contd.
The Unlawful Activities
(Prevention) Amendment
Act, 2004
No such provisions. However,
Section 46 provides the
following:
Admissibility of evidence
collected through the
interception of communi-
cations.-
“Notwithstanding anything
Combatting Terrorism
contained in the Indian
Evidence Act, 1872 (1 of 1872)
or any other law for the time
being in force, the evidence
collected through the
interception of wire, electronic
or oral communication under
the provisions of the Indian
Telegraph Act, 1885 (13 of
1885) or the Information
Technology Act, 2000 (21 of
2000) or any other law for the
time being in force, shall be
Annexure-IV(1) Contd.
The Unlawful Activities
(Prevention) Amendment
Act, 2004
admissible as evidence against
the accused in the court during
the trial of a case:
Provided that the contents of
any wire, electronic or oral
communication intercepted or
evidence derived therefrom
shall not be received in evidence
or otherwise disclosed in any
trial, hearing or other
proceeding in any court unless
each accused has been furnished
with a copy of the order of the
competent authority under the
Comparison of Anti-Terrorism Legislations in India
aforesaid law, under which the
interception was directed, not
less than ten days before trial,
hearing or proceeding:
Provided further that the
period of ten days may be
waived by the judge trying the
matter, if he comes to the
conclusion that it was not
166
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002
1987 recommended by the Law
Commission of India)
J. INTERCEPTION OF COMMUNICATIONS
1. Interception of No separate provision No separate provision Separate chapter 5
communication containing provisions
in certain cases regarding
(1) description of
communication meant for
interception
(2) appointment of
competent authority by the
Central or State
Government for this
purpose
(3) authorisation of such
interception
(4) review of order of
interception issued by the
competent authority by a
review committee
(5) duration of an order of
interception etc.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002
1987 recommended by the Law
Commission of India)
(6) description of authority
competent to carryout
interception
(7) interception of
communication in
emergency situations
(8) protection of
information collected
(9) admissibility of evidence
collected through
interception of
communications
(10) prohibition of
interception and disclosure
of certain communication
(11) annual report of
interceptions.
167
Annexure-IV(1) Contd.
The Unlawful Activities
(Prevention) Amendment
Act, 2004
No such provisions. However,
Section 46 provides the
following:
Admissibility of evidence
collected through the
interception of communi-
cations.-
“Notwithstanding anything
Combatting Terrorism
contained in the Indian
Evidence Act, 1872 (1 of 1872)
or any other law for the time
being in force, the evidence
collected through the
interception of wire, electronic
or oral communication under
the provisions of the Indian
Telegraph Act, 1885 (13 of
1885) or the Information
Technology Act, 2000 (21 of
2000) or any other law for the
time being in force, shall be
Annexure-IV(1) Contd.
The Unlawful Activities
(Prevention) Amendment
Act, 2004
admissible as evidence against
the accused in the court during
the trial of a case:
Provided that the contents of
any wire, electronic or oral
communication intercepted or
evidence derived therefrom
shall not be received in evidence
or otherwise disclosed in any
trial, hearing or other
proceeding in any court unless
each accused has been furnished
with a copy of the order of the
competent authority under the
Comparison of Anti-Terrorism Legislations in India
aforesaid law, under which the
interception was directed, not
less than ten days before trial,
hearing or proceeding:
Provided further that the
period of ten days may be
waived by the judge trying the
matter, if he comes to the
conclusion that it was not
168
Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)
possible to furnish the accused
with such order ten days before
the trial, hearing or proceeding
and that the accused shall not
be prejudiced by the delay in
receiving such order.”

K. REVIEW COMMITTEES
1. Review No separate provision Clause 39 provides for setting Section 60 provides that the Section 37 provides for
Committee up of review committees by Central and State constitution of one or more
Combatting Terrorism

the Central and State Governments shall Review Committees for

Governments to review, at the
end of each quarter in a year,
cases instituted by them under
the Act.
constitute one or more
review committees for the
purposes of the Act.
purposes of review of an order
of the Central Government
rejecting an application for
denotification of a ‘terrorist
organisation’.

L. OBLIGATION TO FURNISH INFORMATION

1. Obligation to No separate provision Clause 14: (1) Same as Law Commission No such provision.
furnish Notwithstanding anything Draft Bill except that
information contained in any other law, provisions of Clause 14 (4)
the officer investigating any of the Draft Bill have not
offence under this Act, shall been included.

Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)
have power to require any
officer or authority of the
Central Government or a
State Government or a local
authority or a Bank, company,
or a firm or any other
institution, establishment,
organisation or any individual
to furnish information in their
possession in relation to such
offence, on points or matters,
as in the opinion of such
officer, will be useful for, or
relevant to, the purposes of
this Act.
Comparison of Anti-Terrorism Legislations in India

(2) Failure to furnish the

information called for under
sub-section (1), or furnishing
false information shall be
punishable with
imprisonment for a term
which may extend to three
years or fine, or with both.
170
168
Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)
possible to furnish the accused
with such order ten days before
the trial, hearing or proceeding
and that the accused shall not
be prejudiced by the delay in
receiving such order.”

K. REVIEW COMMITTEES
1. Review No separate provision Clause 39 provides for setting Section 60 provides that the Section 37 provides for
Committee up of review committees by Central and State constitution of one or more
Combatting Terrorism

the Central and State Governments shall Review Committees for

Governments to review, at the
end of each quarter in a year,
cases instituted by them under
the Act.
constitute one or more
review committees for the
purposes of the Act.
purposes of review of an order
of the Central Government
rejecting an application for
denotification of a ‘terrorist
organisation’.

L. OBLIGATION TO FURNISH INFORMATION

1. Obligation to No separate provision Clause 14: (1) Same as Law Commission No such provision.
furnish Notwithstanding anything Draft Bill except that
information contained in any other law, provisions of Clause 14 (4)
the officer investigating any of the Draft Bill have not
offence under this Act, shall been included.

Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)
have power to require any
officer or authority of the
Central Government or a
State Government or a local
authority or a Bank, company,
or a firm or any other
institution, establishment,
organisation or any individual
to furnish information in their
possession in relation to such
offence, on points or matters,
as in the opinion of such
officer, will be useful for, or
relevant to, the purposes of
this Act.
Comparison of Anti-Terrorism Legislations in India

(2) Failure to furnish the

information called for under
sub-section (1), or furnishing
false information shall be
punishable with
imprisonment for a term
which may extend to three
years or fine, or with both.
169
170
Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)

(3) Not withstanding

anything contained in the
Code, the offence under sub-
section (1) shall be tried as a
summary case and the
procedure prescribed in
Chapter XXI of the said Code
[except sub-section (2) of
section 262] shall be applicable
thereto. (4) Any officer in
Combatting Terrorism

possession of any information

shall furnish the same suo
motu to the officer
investigating an offence under
this Act, if in the opinion of
such officer such information
will be useful to the
investigating officer for the
purposes of this Act.

Annexure-IV(2)
Some Salient Features of Anti-terrorist Legislations in Other Countries
Sl.No. Description USA UK Australia

1. Definition(s) US Code; Title 18; Part 1; Chapter Terrorism Act, 2000 Criminal Code Act, 1995
113B; Terrorism
Section 1: Section 100.1 Definitions
Section 2331 Definitions
(1) In this Act “terrorism” means (1) In this Part:
As used in this chapter— the use or threat of action where-
…
(a) the action falls within sub-
(1) the term “international terrorism”
section (2), “terrorist act” means an action or threat
means activities that—
(b) the use or threat is designed of action where:
(A) involve violent acts or acts
to influence the government or (a) the action falls within sub-section
dangerous to human life that are a
to intimidate the public or a (2) and does not fall within sub-
violation of the criminal laws of the
section of the public, and section (3); and
United States or of any State, or that
(c) the use or threat is made for (b) the action is done or the threat is
would be a criminal violation if
the purpose of advancing a made with the intention of advancing
committed within the jurisdiction of
political, religious or ideological a political, religious or ideological
the United States or of any State;
cause. cause; and
(B) appear to be intended—
(2) Action falls within this subsection (c ) the action is done or the threat is
(i) to intimidate or coerce a
if it – made with the intention of:
civilian population;
(a) involves serious violence (i) coercing, or influencing by
(ii) to influence the policy of a
against a person, intimidation, the government of
government by intimidation or
(b) involves serious damage to the Commonwealth or a State,
coercion; or
property, Territory or foreign country, or
(iii) to affect the conduct of a
(c ) endangers a person’s life, other of part of a State, Territory or
Some Salient Features of Anti-terrorist Legislations in Other Countiries

government by mass destruction,

than that of the person foreign country; or
assassination, or kidnapping; and
committing the action, (ii) intimidating the public or a
(C) occur primarily outside the
(d) creates a serious risk to the section of the public.
territorial jurisdiction of the United
health or safety of the public or a (2) Action falls within this sub-
States, or transcend national
section of the public, or section if it:
boundaries in terms of the means by
171
170
Annexure-IV(1) Contd.
ADMINISTRATIVE REFORMS COMMISSION
Comparison of Anti-terrorism Legislations in India
Sl.No Item Terrorism and Disruptive The Prevention of Terrorism The Prevention of The Unlawful Activities
Activities (Prevention) Act, Bill, 2000 (Draft Bill as Terrorism Act, 2002 (Prevention) Amendment
1987 recommended by the Law Act, 2004
Commission of India)

(3) Not withstanding

anything contained in the
Code, the offence under sub-
section (1) shall be tried as a
summary case and the
procedure prescribed in
Chapter XXI of the said Code
[except sub-section (2) of
section 262] shall be applicable
thereto. (4) Any officer in
Combatting Terrorism

possession of any information

shall furnish the same suo
motu to the officer
investigating an offence under
this Act, if in the opinion of
such officer such information
will be useful to the
investigating officer for the
purposes of this Act.

Annexure-IV(2)
Some Salient Features of Anti-terrorist Legislations in Other Countries
Sl.No. Description USA UK Australia

1. Definition(s) US Code; Title 18; Part 1; Chapter Terrorism Act, 2000 Criminal Code Act, 1995
113B; Terrorism
Section 1: Section 100.1 Definitions
Section 2331 Definitions
(1) In this Act “terrorism” means (1) In this Part:
As used in this chapter— the use or threat of action where-
…
(a) the action falls within sub-
(1) the term “international terrorism”
section (2), “terrorist act” means an action or threat
means activities that—
(b) the use or threat is designed of action where:
(A) involve violent acts or acts
to influence the government or (a) the action falls within sub-section
dangerous to human life that are a
to intimidate the public or a (2) and does not fall within sub-
violation of the criminal laws of the
section of the public, and section (3); and
United States or of any State, or that
(c) the use or threat is made for (b) the action is done or the threat is
would be a criminal violation if
the purpose of advancing a made with the intention of advancing
committed within the jurisdiction of
political, religious or ideological a political, religious or ideological
the United States or of any State;
cause. cause; and
(B) appear to be intended—
(2) Action falls within this subsection (c ) the action is done or the threat is
(i) to intimidate or coerce a
if it – made with the intention of:
civilian population;
(a) involves serious violence (i) coercing, or influencing by
(ii) to influence the policy of a
against a person, intimidation, the government of
government by intimidation or
(b) involves serious damage to the Commonwealth or a State,
coercion; or
property, Territory or foreign country, or
(iii) to affect the conduct of a
(c ) endangers a person’s life, other of part of a State, Territory or
Some Salient Features of Anti-terrorist Legislations in Other Countiries

government by mass destruction,

than that of the person foreign country; or
assassination, or kidnapping; and
committing the action, (ii) intimidating the public or a
(C) occur primarily outside the
(d) creates a serious risk to the section of the public.
territorial jurisdiction of the United
health or safety of the public or a (2) Action falls within this sub-
States, or transcend national
section of the public, or section if it:
boundaries in terms of the means by
171
172
Some Salient Features of Anti-terrorist Legislations in Other Countries
Sl.No. Description USA
which they are accomplished, the
persons they appear intended to
intimidate or coerce, or the locale in
which their perpetrators operate or
seek asylum;
(2) the term “national of the United
States” has the meaning given such term
in section 101(a)(22) of the Immigration
and Nationality Act;
(3) the term “person” means any
individual or entity capable of holding a
legal or beneficial interest in property;
(4) the term “act of war” means any act
occurring in the course of—
(A) declared war;
(B) armed conflict, whether or not
war has been declared, between two
or more nations; or
(C) armed conflict between military
forces of any origin; and
(5) the term “domestic terrorism”
means activities that—
(A) involve acts dangerous to human
life that are a violation of the criminal
laws of the United States or of any
State;
Some Salient Features of Anti-terrorist Legislations in Other Countries
Sl.No. Description USA
(B) appear to be intended—
(i) to intimidate or coerce a
civilian population;
(ii) to influence the policy of a
government by intimidation or
coercion; or
(iii) to affect the conduct of a
government by mass destruction,
assassination, or kidnapping; and
(C) occur primarily within the
territorial jurisdiction of the United
States.
173
UK
(e) is designed seriously to
interfere with or seriously to
disrupt an electronic system.
(3) The use or threat of action falling
within subsection (2) which involves
the use of firearms or explosives is
terrorism whether or not subsection
(1)(b) is satisfied.
(4) In this section –
(a) “action” includes action
outside the United Kingdom,
(b) a reference to any person or
to property is a reference to any
person, or to property, wherever
situated,
(c) a reference to the public
includes a reference to the public
of a country other than the
United Kingdom, and
(d) “the government” means the
government of the United
Kingdom, of a Part of the United
Kingdom or of a country other
than the United Kingdom.
(5) In this Act a reference to action
taken for the purposes of terrorism
UK
includes a reference to action taken
for the benefit of a prescribed
organisation.
Annexure-IV(2) Contd.
Australia
(a) causes serious harm that is
physical harm to a person; or
(b) causes serious damage to
property; or
(c ) causes a person’s death; or
(d) endangers a person’s life, other
than the life of the person taking
the action; or
(e) creates a serious risk to the
health or safety of the public or a
section of the public; or
(f) seriously interferes with,
seriously disrupts, or destroys, an
electronic system including, but
Combatting Terrorism
not limited to:
(i) an information system; or
(ii) a telecommunication
system; or
(iii) a financial system; or
(iv) a system used for the
delivery of essential
government services; or
(v) a system used for, or by,
an essential public utility; or
(vi) a system used for, or by,
a transport system.
Annexure-IV(2) Contd.
Australia
(3) Action falls within this sub-
section if it:
(a) is advocacy, protest, dissent
or industrial action; and
(b) is not intended:
(i) to cause serious harm that
is physical harm to a person;
or
(ii) to cause a person’s death;
or
(iii) to endanger the life of a
person, other than the
person taking the action;
or(iv) to create a serious risk
to the health or safety of the
public or a section of the
public.
(4) In this Division:(a) a
reference to any person or
property is a reference to any
person or property wherever
situated, within or outside
Some Salient Features of Anti-terrorist Legislations in Other Countiries
Australia; and
(b) a reference to the public
includes a reference to the
public of a country other
than Australia.
172
Some Salient Features of Anti-terrorist Legislations in Other Countries
Sl.No. Description USA
which they are accomplished, the
persons they appear intended to
intimidate or coerce, or the locale in
which their perpetrators operate or
seek asylum;
(2) the term “national of the United
States” has the meaning given such term
in section 101(a)(22) of the Immigration
and Nationality Act;
(3) the term “person” means any
individual or entity capable of holding a
legal or beneficial interest in property;
(4) the term “act of war” means any act
occurring in the course of—
(A) declared war;
(B) armed conflict, whether or not
war has been declared, between two
or more nations; or
(C) armed conflict between military
forces of any origin; and
(5) the term “domestic terrorism”
means activities that—
(A) involve acts dangerous to human
life that are a violation of the criminal
laws of the United States or of any
State;
Some Salient Features of Anti-terrorist Legislations in Other Countries
Sl.No. Description USA
(B) appear to be intended—
(i) to intimidate or coerce a
civilian population;
(ii) to influence the policy of a
government by intimidation or
coercion; or
(iii) to affect the conduct of a
government by mass destruction,
assassination, or kidnapping; and
(C) occur primarily within the
territorial jurisdiction of the United
States.
173
UK
(e) is designed seriously to
interfere with or seriously to
disrupt an electronic system.
(3) The use or threat of action falling
within subsection (2) which involves
the use of firearms or explosives is
terrorism whether or not subsection
(1)(b) is satisfied.
(4) In this section –
(a) “action” includes action
outside the United Kingdom,
(b) a reference to any person or
to property is a reference to any
person, or to property, wherever
situated,
(c) a reference to the public
includes a reference to the public
of a country other than the
United Kingdom, and
(d) “the government” means the
government of the United
Kingdom, of a Part of the United
Kingdom or of a country other
than the United Kingdom.
(5) In this Act a reference to action
taken for the purposes of terrorism
UK
includes a reference to action taken
for the benefit of a prescribed
organisation.
Annexure-IV(2) Contd.
Australia
(a) causes serious harm that is
physical harm to a person; or
(b) causes serious damage to
property; or
(c ) causes a person’s death; or
(d) endangers a person’s life, other
than the life of the person taking
the action; or
(e) creates a serious risk to the
health or safety of the public or a
section of the public; or
(f) seriously interferes with,
seriously disrupts, or destroys, an
electronic system including, but
Combatting Terrorism
not limited to:
(i) an information system; or
(ii) a telecommunication
system; or
(iii) a financial system; or
(iv) a system used for the
delivery of essential
government services; or
(v) a system used for, or by,
an essential public utility; or
(vi) a system used for, or by,
a transport system.
Annexure-IV(2) Contd.
Australia
(3) Action falls within this sub-
section if it:
(a) is advocacy, protest, dissent
or industrial action; and
(b) is not intended:
(i) to cause serious harm that
is physical harm to a person;
or
(ii) to cause a person’s death;
or
(iii) to endanger the life of a
person, other than the
person taking the action;
or(iv) to create a serious risk
to the health or safety of the
public or a section of the
public.
(4) In this Division:(a) a
reference to any person or
property is a reference to any
person or property wherever
situated, within or outside
Some Salient Features of Anti-terrorist Legislations in Other Countiries
Australia; and
(b) a reference to the public
includes a reference to the
public of a country other
than Australia.
174
Some Salient Features of Anti-terrorist Legislations in Other Countries
Sl.No. Description USA
2. Financing of US Code; Title 18; Part 1; Chapter
terrorism 113B; Terrorism
Section 2332d Financial Transactions
(a) Offense.— Except as provided in
regulations issued by the Secretary of the
Treasury, in consultation with the
Secretary of State, whoever, being a
United States person, knowing or having
reasonable cause to know that a country
is designated under section 6(j) of the
Export Administration Act of 1979 (50
App. USC 2405) as a country supporting
international terrorism, engages in a
financial transaction with the government
of that country, shall be fined under this
title, imprisoned for not more than 10
years, or both.
(b) Definitions.— As used in this
section—
(1) the term “financial transaction”
has the same meaning as in section
1956 (c)(4); and
(2) the term “United States person”
means any—
(A) United States citizen or
national;
(B) permanent resident alien;
Some Salient Features of Anti-terrorist Legislations in Other Countries
Sl.No. Description USA
(C) juridical person organized
under the laws of the United
States; or
(D) any person in the United
States.
Section 2339A. Providing
material support to terrorists
(a) Offense.— Whoever
provides material support or
resources or conceals or disguises
the nature, location, source, or
ownership of material support or
resources, knowing or intending
that they are to be used in
preparation for, or in carrying
out, a violation of section 32, 37,
81, 175, 229, 351, 831, 842 (m)
or (n), 844 (f) or (i), 930 (c), 956,
1114, 1116, 1203, 1361, 1362,
1363, 1366, 1751, 1992, 1993,
2155, 2156, 2280, 2281, 2332,
2332a, 2332b, 2332f, or 2340A
of this title, section 236 of the
Atomic Energy Act of 1954 (42
USC 2284), section 46502 or
60123 (b) of title 49, or any
offense listed in section 2332b
(g)(5)(B) (except for sections
175
UK
Terrorism Act, 2000
Terrorist Property
14.-(1) In this Act “terrorist property”
means-
(a) money or other property which is
likely to be used for the purposes or
terrorism (including any resources of
a proscribed organisation),
(b) proceeds of the commission of
acts of terrorism, and
(c) proceeds of acts carried out for
the purposes of terrorism.
(2) In subsection (1)-
(a) a reference to proceeds of an act
includes a reference to any property
which wholly or partly, and directly
or indirectly, represents the proceeds
of the act (including payments or
other rewards in connection with its
commission), and
(b) the reference to an organisation’s
resources includes a reference to any
money or other property which is
applied or made available, or is to be
applied or made available, for use by
the organisation.
UK
Fund raising
15.-(1) A person commits an offence if
he –
(a) invites another to provide money
or other property, and
(b) intends that it should be used, or
has reasonable cause to suspect that it
may be used, for the purposes of
terrorism.
(2) A person commits an offence if he-
(a) receives money or other property,
and
(b) intends that it should be used, or
has reasonable cause to suspect that it
may be used, for the purposes of
terrorism.
(3) A person commits an offence if he-
(a) provides money or other property,
and
(b) knows or has reasonable cause to
suspect that it will or may be used for
the purposes of terrorism.
(4) In this section a reference to the
provision of money or other property is a
reference to its being given, lent or
otherwise made available, whether or not
for consideration.
Use and possession16.-(1) – A person
Annexure-IV(2) Contd.
Australia
Terrorism Act, 2000
Section 102.6 Getting Funds to or
from a terrorist organization
(1) A person commits an offence if:
(a) the person intentionally receives
funds from, or makes funds available
to, an organization (whether directly
or indirectly); and
(b) the organization is a terrorist
organization; and
(c) the person knows the
organization is a terrorist
organization.
Penalty : Imprisonment for 25 years.
Combatting Terrorism
(2) A person commits an offence if:
(a) the person intentionally receives
funds from, or makes funds available
to, an organization (whether directly
or indirectly); and
(b) the organization is a terrorist
organization; and
(c) the person is reckless as to
whether the organization is a terrorist
organization.
Penalty : Imprisonment for 15 years.
(3) Sub-sections (1) and (2) do not apply
to the person’s receipt of funds from the
organization if the person proves that
Annexure-IV(2) Contd.
Australia
he or she received the funds solely for the
purpose of the provision of:
(a) legal representation for a person
in proceedings relating to this
Division; or
(b) assistance to the organization for
it to comply with a law of the
Commonwealth or a State or
Territory.
Note: A defendant bears a legal burden
in relation to the matter in subsection (3)
(see section 13.4).
103.1 Financing Terrorism
(1) A person commits an offence if:
(a) the person provides or collects
funds; and
(b) the person is reckless as to whether
the funds will be used to facilitate or
engage in a terrorist act.
Penalty: Imprisonment for life.
Note: Intention is the fault element for
Some Salient Features of Anti-terrorist Legislations in Other Countiries
the conduct described in paragraph (1)
(a). See subsection 5.6(1).
(2) A person commits an offence under
subsection (1) even if:
(a) a terrorist act does not occur; or
(b) the funds will not be used to
174
Some Salient Features of Anti-terrorist Legislations in Other Countries
Sl.No. Description USA
2. Financing of US Code; Title 18; Part 1; Chapter
terrorism 113B; Terrorism
Section 2332d Financial Transactions
(a) Offense.— Except as provided in
regulations issued by the Secretary of the
Treasury, in consultation with the
Secretary of State, whoever, being a
United States person, knowing or having
reasonable cause to know that a country
is designated under section 6(j) of the
Export Administration Act of 1979 (50
App. USC 2405) as a country supporting
international terrorism, engages in a
financial transaction with the government
of that country, shall be fined under this
title, imprisoned for not more than 10
years, or both.
(b) Definitions.— As used in this
section—
(1) the term “financial transaction”
has the same meaning as in section
1956 (c)(4); and
(2) the term “United States person”
means any—
(A) United States citizen or
national;
(B) permanent resident alien;
Some Salient Features of Anti-terrorist Legislations in Other Countries
Sl.No. Description USA
(C) juridical person organized
under the laws of the United
States; or
(D) any person in the United
States.
Section 2339A. Providing
material support to terrorists
(a) Offense.— Whoever
provides material support or
resources or conceals or disguises
the nature, location, source, or
ownership of material support or
resources, knowing or intending
that they are to be used in
preparation for, or in carrying
out, a violation of section 32, 37,
81, 175, 229, 351, 831, 842 (m)
or (n), 844 (f) or (i), 930 (c), 956,
1114, 1116, 1203, 1361, 1362,
1363, 1366, 1751, 1992, 1993,
2155, 2156, 2280, 2281, 2332,
2332a, 2332b, 2332f, or 2340A
of this title, section 236 of the
Atomic Energy Act of 1954 (42
USC 2284), section 46502 or
60123 (b) of title 49, or any
offense listed in section 2332b
(g)(5)(B) (except for sections
175
UK
Terrorism Act, 2000
Terrorist Property
14.-(1) In this Act “terrorist property”
means-
(a) money or other property which is
likely to be used for the purposes or
terrorism (including any resources of
a proscribed organisation),
(b) proceeds of the commission of
acts of terrorism, and
(c) proceeds of acts carried out for
the purposes of terrorism.
(2) In subsection (1)-
(a) a reference to proceeds of an act
includes a reference to any property
which wholly or partly, and directly
or indirectly, represents the proceeds
of the act (including payments or
other rewards in connection with its
commission), and
(b) the reference to an organisation’s
resources includes a reference to any
money or other property which is
applied or made available, or is to be
applied or made available, for use by
the organisation.
UK
Fund raising
15.-(1) A person commits an offence if
he –
(a) invites another to provide money
or other property, and
(b) intends that it should be used, or
has reasonable cause to suspect that it
may be used, for the purposes of
terrorism.
(2) A person commits an offence if he-
(a) receives money or other property,
and
(b) intends that it should be used, or
has reasonable cause to suspect that it
may be used, for the purposes of
terrorism.
(3) A person commits an offence if he-
(a) provides money or other property,
and
(b) knows or has reasonable cause to
suspect that it will or may be used for
the purposes of terrorism.
(4) In this section a reference to the
provision of money or other property is a
reference to its being given, lent or
otherwise made available, whether or not
for consideration.
Use and possession16.-(1) – A person
Annexure-IV(2) Contd.
Australia
Terrorism Act, 2000
Section 102.6 Getting Funds to or
from a terrorist organization
(1) A person commits an offence if:
(a) the person intentionally receives
funds from, or makes funds available
to, an organization (whether directly
or indirectly); and
(b) the organization is a terrorist
organization; and
(c) the person knows the
organization is a terrorist
organization.
Penalty : Imprisonment for 25 years.
Combatting Terrorism
(2) A person commits an offence if:
(a) the person intentionally receives
funds from, or makes funds available
to, an organization (whether directly
or indirectly); and
(b) the organization is a terrorist
organization; and
(c) the person is reckless as to
whether the organization is a terrorist
organization.
Penalty : Imprisonment for 15 years.
(3) Sub-sections (1) and (2) do not apply
to the person’s receipt of funds from the
organization if the person proves that
Annexure-IV(2) Contd.
Australia
he or she received the funds solely for the
purpose of the provision of:
(a) legal representation for a person
in proceedings relating to this
Division; or
(b) assistance to the organization for
it to comply with a law of the
Commonwealth or a State or
Territory.
Note: A defendant bears a legal burden
in relation to the matter in subsection (3)
(see section 13.4).
103.1 Financing Terrorism
(1) A person commits an offence if:
(a) the person provides or collects
funds; and
(b) the person is reckless as to whether
the funds will be used to facilitate or
engage in a terrorist act.
Penalty: Imprisonment for life.
Note: Intention is the fault element for
Some Salient Features of Anti-terrorist Legislations in Other Countiries
the conduct described in paragraph (1)
(a). See subsection 5.6(1).
(2) A person commits an offence under
subsection (1) even if:
(a) a terrorist act does not occur; or
(b) the funds will not be used to
176
Some Salient Features of Anti-terrorist Legislations in Other Countries
Sl.No. Description USA
2339A and 2339B) or in
preparation for, or in carrying
out, the concealment of an escape
from the commission of any such
violation, or attempts or conspires
to do such an act, shall be fined
under this title, imprisoned not
more than 15 years, or both, and,
if the death of any person results,
shall be imprisoned for any term
of years or for life. A violation of
this section may be prosecuted in
any Federal judicial district in
which the underlying offense was
UK
commits an offence if he uses money or
other property for the purposes of
terrorism.(2) A person commits an
offence if he-(a) possesses money or other
property, and(b) intends that it should be
used, or has reasonable cause to suspect
that it may be used, for the purposes of
terrorism.
Funding Arrangements
17. A person commits an offence if-
(a) he enters into or becomes
concerned in an arrangement as a
result of which money or other
property is made available or is to be
Annexure-IV(2) Contd.
Australia
facilitate or engage in a specific
terrorist act; or
(c) the funds will be used to facilitate
or engage in more than one terrorist
act.
(3) Section 15.4 (extended
geographical jurisdiction – category
D) applies to an offence against sub-
section (1).
Combatting Terrorism

committed, or in any other made available to another, and(b) he

Federal judicial district as
provided by law.
(b) Definitions.— As used in
this section—
Money Laundering
(1) the term “material support
or resources” means any property,
tangible or intangible, or service,
including currency or monetary
instruments or financial securities,
financial services, lodging,
training, expert advice or
assistance, safehouses, false
documentation or identification,
knows or has reasonable cause to
suspect that it will or may be used for
the purposes of terrorism.
18.-(1) A person commits an offence
if he enters into or becomes concerned
in an arrangement which facilitates
the retention or control by or on
behalf of another person of terrorist
property-
(a) by concealment,
(b) by removal from the
jurisdiction,

Some Salient Features of Anti-terrorist Legislations in Other Countries
Sl.No. Description USA
communications equipment,
facilities, weapons, lethal
substances, explosives, personnel
(1 or more individuals who may
be or include oneself), and
transportation, except medicine
or religious materials;
(2) the term “training” means
instruction or teaching designed
to impart a specific skill, as
opposed to general knowledge;
and
(3) the term “expert advice or
assistance” means advice or
assistance derived from scientific,
technical or other specialized
knowledge.
Section 2339B. Providing material
support or resources to designated
foreign terrorist organizations
(a) Prohibited Activities.—
Annexure-IV(2) Contd.
UK Australia
(c ) by transfer to nominees, or
(d) in any other way.
(2) It is a defence for a person charged
with an offence under sub-section(1) to
prove that he did not know and had no
reasonable cause to suspect that the
arrangement related to terrorist property.
22. A person guilty of an offence under
any of sections 15 to 18 shall be liable-
(a) on conviction on indictment, to
imprisonment for a term not
exceeding 14 years, to a fine or to
both, or
(b) on summary conviction, to
imprisonment for a term not
exceeding six months, to a fine not
exceeding the statutory maximum or
to both.
Some Salient Features of Anti-terrorist Legislations in Other Countiries

(1) Unlawful conduct.—

Whoever knowingly provides material
support or resources to a foreign terrorist
organization, or attempts or conspires to
do so, shall be fined under this title or
imprisoned not more than 15 years, or
177
176
Some Salient Features of Anti-terrorist Legislations in Other Countries
Sl.No. Description USA
2339A and 2339B) or in
preparation for, or in carrying
out, the concealment of an escape
from the commission of any such
violation, or attempts or conspires
to do such an act, shall be fined
under this title, imprisoned not
more than 15 years, or both, and,
if the death of any person results,
shall be imprisoned for any term
of years or for life. A violation of
this section may be prosecuted in
any Federal judicial district in
which the underlying offense was
UK
commits an offence if he uses money or
other property for the purposes of
terrorism.(2) A person commits an
offence if he-(a) possesses money or other
property, and(b) intends that it should be
used, or has reasonable cause to suspect
that it may be used, for the purposes of
terrorism.
Funding Arrangements
17. A person commits an offence if-
(a) he enters into or becomes
concerned in an arrangement as a
result of which money or other
property is made available or is to be
Annexure-IV(2) Contd.
Australia
facilitate or engage in a specific
terrorist act; or
(c) the funds will be used to facilitate
or engage in more than one terrorist
act.
(3) Section 15.4 (extended
geographical jurisdiction – category
D) applies to an offence against sub-
section (1).
Combatting Terrorism

committed, or in any other made available to another, and(b) he

Federal judicial district as
provided by law.
(b) Definitions.— As used in
this section—
Money Laundering
(1) the term “material support
or resources” means any property,
tangible or intangible, or service,
including currency or monetary
instruments or financial securities,
financial services, lodging,
training, expert advice or
assistance, safehouses, false
documentation or identification,
knows or has reasonable cause to
suspect that it will or may be used for
the purposes of terrorism.
18.-(1) A person commits an offence
if he enters into or becomes concerned
in an arrangement which facilitates
the retention or control by or on
behalf of another person of terrorist
property-
(a) by concealment,
(b) by removal from the
jurisdiction,

Some Salient Features of Anti-terrorist Legislations in Other Countries
Sl.No. Description USA
communications equipment,
facilities, weapons, lethal
substances, explosives, personnel
(1 or more individuals who may
be or include oneself), and
transportation, except medicine
or religious materials;
(2) the term “training” means
instruction or teaching designed
to impart a specific skill, as
opposed to general knowledge;
and
(3) the term “expert advice or
assistance” means advice or
assistance derived from scientific,
technical or other specialized
knowledge.
Section 2339B. Providing material
support or resources to designated
foreign terrorist organizations
(a) Prohibited Activities.—
Annexure-IV(2) Contd.
UK Australia
(c ) by transfer to nominees, or
(d) in any other way.
(2) It is a defence for a person charged
with an offence under sub-section(1) to
prove that he did not know and had no
reasonable cause to suspect that the
arrangement related to terrorist property.
22. A person guilty of an offence under
any of sections 15 to 18 shall be liable-
(a) on conviction on indictment, to
imprisonment for a term not
exceeding 14 years, to a fine or to
both, or
(b) on summary conviction, to
imprisonment for a term not
exceeding six months, to a fine not
exceeding the statutory maximum or
to both.
Some Salient Features of Anti-terrorist Legislations in Other Countiries

(1) Unlawful conduct.—

Whoever knowingly provides material
support or resources to a foreign terrorist
organization, or attempts or conspires to
do so, shall be fined under this title or
imprisoned not more than 15 years, or
177
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Annexure-IV(2) Contd.
Some Salient Features of Anti-terrorist Legislations in Other Countries
Sl.No. Description USA UK Australia

both, and, if the death of any person

results, shall be imprisoned for any
term of years or for life. To violate
this paragraph, a person must have
knowledge that the organization is a
designated terrorist organization [as
defined in subsection (g)(6)], that the
organization has engaged or engages
in terrorist activity (as defined in
section 212(a)(3)(B) of the
Immigration and Nationality Act), or
that the organization has engaged or
engages in terrorism (as defined in
section 140(d)(2) of the Foreign
Combatting Terrorism

Relations Authorization Act, Fiscal

Years 1988 and 1989).
(2) Financial Institutions.—
Except as authorized by the
Secretary, any financial institution
that becomes aware that it has
possession of, or control over, any
funds in which a foreign terrorist
organization, or its agent, has an
interest, shall—
(A) retain possession of, or
maintain control over, such
funds; and

Annexure-IV(2) Contd.
Some Salient Features of Anti-terrorist Legislations in Other Countries
Sl.No. Description USA UK Australia

(B) report to the Secretary the

existence of such funds in
accordance with regulations
issued by the Secretary.
(b) Civil Penalty.— Any financial
institution that knowingly fails to
comply with subsection (a)(2) shall
be subject to a civil penalty in an
amount that is the greater of—
(A) $50,000 per violation; or
(B) twice the amount of which
the financial institution was
required under subsection (a)(2)
to retain possession or control.
(c) Injunction.— Whenever it
appears to the Secretary or the
Attorney General that any person is
engaged in, or is about to engage in,
any act that constitutes, or would
constitute, a violation of this section,
the Attorney General may initiate
civil action in a district court of
Some Salient Features of Anti-terrorist Legislations in Other Countiries

the United States to enjoin such

violation.
(d) Extraterritorial Jurisdiction-
(1) In general.— There is
jurisdiction over an offense under
sub-section (a) if—
179
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Annexure-IV(2) Contd.
Some Salient Features of Anti-terrorist Legislations in Other Countries
Sl.No. Description USA UK Australia

both, and, if the death of any person

results, shall be imprisoned for any
term of years or for life. To violate
this paragraph, a person must have
knowledge that the organization is a
designated terrorist organization [as
defined in subsection (g)(6)], that the
organization has engaged or engages
in terrorist activity (as defined in
section 212(a)(3)(B) of the
Immigration and Nationality Act), or
that the organization has engaged or
engages in terrorism (as defined in
section 140(d)(2) of the Foreign
Combatting Terrorism

Relations Authorization Act, Fiscal

Years 1988 and 1989).
(2) Financial Institutions.—
Except as authorized by the
Secretary, any financial institution
that becomes aware that it has
possession of, or control over, any
funds in which a foreign terrorist
organization, or its agent, has an
interest, shall—
(A) retain possession of, or
maintain control over, such
funds; and

Annexure-IV(2) Contd.
Some Salient Features of Anti-terrorist Legislations in Other Countries
Sl.No. Description USA UK Australia

(B) report to the Secretary the

existence of such funds in
accordance with regulations
issued by the Secretary.
(b) Civil Penalty.— Any financial
institution that knowingly fails to
comply with subsection (a)(2) shall
be subject to a civil penalty in an
amount that is the greater of—
(A) $50,000 per violation; or
(B) twice the amount of which
the financial institution was
required under subsection (a)(2)
to retain possession or control.
(c) Injunction.— Whenever it
appears to the Secretary or the
Attorney General that any person is
engaged in, or is about to engage in,
any act that constitutes, or would
constitute, a violation of this section,
the Attorney General may initiate
civil action in a district court of
Some Salient Features of Anti-terrorist Legislations in Other Countiries

the United States to enjoin such

violation.
(d) Extraterritorial Jurisdiction-
(1) In general.— There is
jurisdiction over an offense under
sub-section (a) if—
179
180
Annexure-IV(2) Contd.
Some Salient Features of Anti-terrorist Legislations in Other Countries
Sl.No. Description USA UK Australia

(A) an offender is a national of

the United States (as defined in
section 101(a)(22) of the
Immigration and Nationality Act
[8 U.S.C. 1101 (a)(22)] or an
alien lawfully admitted for
permanent residence in the
United States (as defined in
section 101(a)(20) of the
Immigration and Nationality Act
[8 U.S.C. 1101 (a)(20)];
(B) an offender is a stateless
person whose habitual residence
Combatting Terrorism

is in the United States;

(C) after the conduct required for
the offense occurs an offender is
brought into or found in the
United States, even if the conduct
required for the offense occurs
outside the United States;
(D) the offense occurs in whole
or in part within the United
States;
(E) the offense occurs in or affects
interstate or foreign commerce;
or
(F) an offender aids or abets any

Annexure-IV(2) Contd.
Some Salient Features of Anti-terrorist Legislations in Other Countries
Sl.No. Description USA UK Australia
person over whom jurisdiction
exists under this paragraph in
committing an offense under
subsection (a) or conspires with
any person over whom
jurisdiction exists under this
paragraph to commit an offense
under subsection (a).
(2) Extraterritorial
jurisdiction.—
There is extraterritorial Federal
jurisdiction over an offense under this
section.
(e) Investigations.—
(1) In general.— The Attorney
General shall conduct any
investigation of a possible
violation of this section, or of any
license, order, or regulation issued
pursuant to this section.
(2) Coordination with the
department of the treasury.—
Some Salient Features of Anti-terrorist Legislations in Other Countiries

The Attorney General shall work in

coordination with the Secretary in
investigations relating to—
(A) the compliance or
noncompliance by a financial
institution with the
181
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Annexure-IV(2) Contd.
Some Salient Features of Anti-terrorist Legislations in Other Countries
Sl.No. Description USA UK Australia

(A) an offender is a national of

the United States (as defined in
section 101(a)(22) of the
Immigration and Nationality Act
[8 U.S.C. 1101 (a)(22)] or an
alien lawfully admitted for
permanent residence in the
United States (as defined in
section 101(a)(20) of the
Immigration and Nationality Act
[8 U.S.C. 1101 (a)(20)];
(B) an offender is a stateless
person whose habitual residence
Combatting Terrorism

is in the United States;

(C) after the conduct required for
the offense occurs an offender is
brought into or found in the
United States, even if the conduct
required for the offense occurs
outside the United States;
(D) the offense occurs in whole
or in part within the United
States;
(E) the offense occurs in or affects
interstate or foreign commerce;
or
(F) an offender aids or abets any

Annexure-IV(2) Contd.
Some Salient Features of Anti-terrorist Legislations in Other Countries
Sl.No. Description USA UK Australia
person over whom jurisdiction
exists under this paragraph in
committing an offense under
subsection (a) or conspires with
any person over whom
jurisdiction exists under this
paragraph to commit an offense
under subsection (a).
(2) Extraterritorial
jurisdiction.—
There is extraterritorial Federal
jurisdiction over an offense under this
section.
(e) Investigations.—
(1) In general.— The Attorney
General shall conduct any
investigation of a possible
violation of this section, or of any
license, order, or regulation issued
pursuant to this section.
(2) Coordination with the
department of the treasury.—
Some Salient Features of Anti-terrorist Legislations in Other Countiries

The Attorney General shall work in

coordination with the Secretary in
investigations relating to—
(A) the compliance or
noncompliance by a financial
institution with the
181
182
Annexure-IV(2) Contd.
Some Salient Features of Anti-terrorist Legislations in Other Countries
Sl.No. Description USA UK Australia

requirements of sub-
section (a)(2); and
(B) civil penalty
proceedings authorized
under subsection (b).
(3) Referral.— Any
evidence of a criminal
violation of this section
arising in the course of an
investigation by the
Secretary or any other
Federal agency shall be
referred immediately to the
Attorney General for further
Combatting Terrorism

investigation. The Attorney

General shall timely notify
the Secretary of any action
taken on referrals from the
Secretary, and may refer
investigations to the
Secretary for remedial
licensing or civil penalty
action.
…
(g) Definitions.— As used in
this section—
(1) the term “classified
information” has the

Annexure-IV(2) Contd.
Some Salient Features of Anti-terrorist Legislations in Other Countries
Sl.No. Description USA UK Australia

meaning given that term in

section 1(a) of the Classified
Information Procedures Act (18
USC App.);
(2) the term “financial
institution” has the same
meaning as in section 5312 (a)(2)
of title 31, United States Code;
(3) the term “funds” includes
coin or currency of the United
States or any other country,
traveler’s checks, personal checks,
bank checks, money orders,
stocks, bonds, debentures, drafts,
letters of credit, any other
negotiable instrument, and any
electronic representation of any
of the foregoing;
(4) the term “material support
or resources” has the same
meaning given that term in
Some Salient Features of Anti-terrorist Legislations in Other Countiries

section 2339A (including the

definitions of “training” and
“expert advice or assistance” in
that section);
(5) the term “Secretary” means
the Secretary of the Treasury;
and
183
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Annexure-IV(2) Contd.
Some Salient Features of Anti-terrorist Legislations in Other Countries
Sl.No. Description USA UK Australia

requirements of sub-
section (a)(2); and
(B) civil penalty
proceedings authorized
under subsection (b).
(3) Referral.— Any
evidence of a criminal
violation of this section
arising in the course of an
investigation by the
Secretary or any other
Federal agency shall be
referred immediately to the
Attorney General for further
Combatting Terrorism

investigation. The Attorney

General shall timely notify
the Secretary of any action
taken on referrals from the
Secretary, and may refer
investigations to the
Secretary for remedial
licensing or civil penalty
action.
…
(g) Definitions.— As used in
this section—
(1) the term “classified
information” has the

Annexure-IV(2) Contd.
Some Salient Features of Anti-terrorist Legislations in Other Countries
Sl.No. Description USA UK Australia

meaning given that term in

section 1(a) of the Classified
Information Procedures Act (18
USC App.);
(2) the term “financial
institution” has the same
meaning as in section 5312 (a)(2)
of title 31, United States Code;
(3) the term “funds” includes
coin or currency of the United
States or any other country,
traveler’s checks, personal checks,
bank checks, money orders,
stocks, bonds, debentures, drafts,
letters of credit, any other
negotiable instrument, and any
electronic representation of any
of the foregoing;
(4) the term “material support
or resources” has the same
meaning given that term in
Some Salient Features of Anti-terrorist Legislations in Other Countiries

section 2339A (including the

definitions of “training” and
“expert advice or assistance” in
that section);
(5) the term “Secretary” means
the Secretary of the Treasury;
and
183
 Combatting Terrorism

List of Reports Submitted by the Second Administrative Reforms

Annexure-IV(2) Contd.

Australia Commission upto May 2008

1. First Report: Right to Information: Master Key to Good Governance

Some Salient Features of Anti-terrorist Legislations in Other Countries

2. Second Report: Unlocking Human Capital: Entitlements and Governance – a case study

3. Third Report: Crisis Management: From Despair to Hope

4. Fourth Report: Ethics in Governance

5. Fifth Report: Public Order – Justice for All . . . Peace for All

6. Sixth Report: Local Governance – An inspiring journey into the future

UK

7. Seventh Report: Capacity Building for Conflict Resolution – Friction to Fusion

(6) the term “terrorist
organization” means an
organization designated as a
terrorist organization under
section 219 of the Immigration
and Nationality Act.
USA
Description
Sl.No.

184 185
 Combatting Terrorism

List of Reports Submitted by the Second Administrative Reforms

Annexure-IV(2) Contd.

Australia Commission upto May 2008

1. First Report: Right to Information: Master Key to Good Governance

Some Salient Features of Anti-terrorist Legislations in Other Countries

2. Second Report: Unlocking Human Capital: Entitlements and Governance – a case study

3. Third Report: Crisis Management: From Despair to Hope

4. Fourth Report: Ethics in Governance

5. Fifth Report: Public Order – Justice for All . . . Peace for All

6. Sixth Report: Local Governance – An inspiring journey into the future

UK

7. Seventh Report: Capacity Building for Conflict Resolution – Friction to Fusion

(6) the term “terrorist
organization” means an
organization designated as a
terrorist organization under
section 219 of the Immigration
and Nationality Act.
USA
Description
Sl.No.

184 185
 8

EIGHTH REPORT

COMBATTING TERRORISM – PROTECTING BY RIGHTEOUSNESS

SECOND ADMINISTRATIVE REFORMS COMMISSION

COMBATTING TERRORISM
PROTECTING BY RIGHTEOUSNESS

Second Administrative Reforms Commission

Government of India

2nd Floor, Vigyan Bhawan Annexe, Maulana Azad Road, New Delhi 110 011
e-mail : arcommission@nic.in website : http://arc.gov.in JUNE 2008